throbber
Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`
`ESTTA Tracking number:
`
`ESTTA1083828
`
`Filing date:
`
`09/23/2020
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Petition for Cancellation
`
`Notice is hereby given that the following party has filed a petition to cancel the registration indicated below.
`
`Petitioner Information
`
`Name
`
`Entity
`
`Address
`
`Attorney informa-
`tion
`
`Biena, LLC
`
`limited liability company
`
`Citizenship
`
`Massachusetts
`
`119 BRAINTREE STREET
`SUITE 603
`BOSTON, MA 02134
`UNITED STATES
`
`AMANDA ROACH
`AMIN TALATI WASSERMAN LLP
`100 S. WACKER DRIVE
`SUITE 2000
`CHICAGO, IL 60606
`UNITED STATES
`Primary Email: trademark@amintalati.com
`Secondary Email(s): amanda@amintalati.com, gspatz@amintalati.com, jen-
`nifer.colkitt@amintalati.com, sarah@amintalati.com
`312-327-3328
`
`Docket Number
`
`BNC-0008-US
`
`Registration Subject to Cancellation
`
`Registration No.
`
`5171062
`
`Registration date
`
`03/28/2017
`
`Registrant
`
`Texas Star Nut and Food Company, Inc.
`206 MARKET AVENUE
`BOERNE, TX 78006
`UNITED STATES
`
`Goods/Services Subject to Cancellation
`
`Class 029. First Use: 2011/11/10 First Use In Commerce: 2011/11/10
`All goods and services in the class are subject to cancellation, namely: Processed nuts, namely,
`cashews
`
`Grounds for Cancellation
`
`Abandonment
`
`Trademark Act Section 14(3)
`
`Attachments
`
`Petition to Cancel ROCKIN RANCH CASHEWS.pdf(29741 bytes )
`
`Signature
`
`/Amanda Roach/
`
`

`

`Name
`
`Date
`
`Amanda Roach
`
`09/23/2020
`
`

`

`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`
`
`
`Biena, LLC
`
`v.
`
`Petitioner,
`
`
`Texas Star Nut and Food Company, Inc.
`
`Registrant.
`
`
`
`
`
`
`
`Cancellation No.: ________________
`
`PETITION FOR CANCELLATION
`
`Trademark: ROCKIN’ RANCH
` CASHEWS
`Registration No.: 5171062
`Registration Date: March 28, 2017
`
`
`
`PETITION FOR CANCELLATION
`
`Biena, LLC (hereinafter referred to as “Petitioner” or “Biena”) believes it will be damaged
`
`by the continued registration of the mark ROCKIN’ RANCH CASHEWS (“Registrant’s Mark”)
`
`by Texas Star Nut and Food Company, Inc. (hereinafter referred to as “Registrant” or “Texas
`
`Star”). Accordingly, Biena, by its attorneys Amin Talati Wasserman LLP, hereby petitions for
`
`cancellation of Texas Star’s U.S. Registration No. 5171062 for the mark ROCKIN’ RANCH
`
`CASHEWS (the “ROCKIN’ RANCH CASHEWS Registration”). In support of its Petition for
`
`Cancellation, Biena states as follows:
`
`1.
`
`Biena is a Massachusetts limited liability company located at Suite 603, 119
`
`Braintree Street, Boston, Massachusetts 02134, United States of America.
`
`2.
`
`Biena is the owner of pending U.S. Application Serial No. 88746574 for the mark
`
`ROCKIN’ RANCH (the “ROCKIN’ RANCH Application”), filed with the USPTO on January 3,
`
`2020. The ROCKIN’ RANCH Application covers the following goods: Chickpea-based snack
`
`foods; Plant-based snack foods; Pulse-based snack foods; Chocolate-coated chickpea-based snack
`
`foods; Vegetable-based snack foods; Potato-based snack foods; Tofu-based snacks, Dried fruit-
`
`

`

`based snacks, Fruit-based snack food, Nut-based snack foods, Soy-based snack foods, Seed-based
`
`snack foods, Bean-based snack foods, Cheese-based snack foods, potato puffs, Sweet Corn-based
`
`snack foods (International Class 29, as amended); Cereal-based snack food, Rice-based snack
`
`food, Wheat-based snack foods, Corn-based snack foods, Granola snacks, Quinoa-based snack
`
`foods, Grain-based snack foods, Multigrain-based snack foods, Chocolates, Chocolate-coated
`
`nuts, chocolate covered pretzels, chocolate covered popcorn, chocolate candies, Caramels,
`
`Caramel popcorn (International Class 30, as amended).
`
`3.
`
`In an Office Action issued by the USPTO on March 24, 2020, the examining
`
`attorney cited the ROCKIN’ RANCH CASHEWS Registration as a bar to registration of the
`
`ROCKIN’ RANCH Application under 15 U.S.C. § 1052(d).
`
`4.
`
`As a result, Biena is being damaged and will continue to be damaged by Texas
`
`Star’s ROCKIN’ RANCH CASHEWS Registration. This harm provides Biena with sufficient
`
`standing to bring its Petition for Cancellation against Texas Star’s ROCKIN’ RANCH CASHEWS
`
`Registration.
`
`5.
`
`On information and belief and according to USPTO records, Texas Star is a Texas
`
`corporation and has an address of 206 Market Avenue, Boerne, Texas 78006, United States of
`
`America.
`
`6.
`
`The application that matured into the ROCKIN’ RANCH CASHEWS Registration
`
`was filed on August 23, 2016, by Texas Star. The application achieved registration on March 28,
`
`2017. The ROCKIN’ RANCH CASHEWS Registration covers the following goods in
`
`International class 29: Processed nuts, namely, cashews.
`
`

`

`7.
`
`On information and belief, Texas Star has ceased use of the ROCKIN’ RANCH
`
`CASHEWS Registration in U.S. interstate commerce in connection with the sale of the goods
`
`identified therein and does not intend to resume use of the mark.
`
`8.
`
`Online research and inquiries directed to Texas Star failed to reveal any evidence
`
`of the ROCKIN’ RANCH CASHEWS mark being used in relation to the goods identified in the
`
`ROCKIN’ RANCH CASHEWS Registration.
`
`9.
`
`Further research and contact with Texas Star confirmed that the ROCKIN’ RANCH
`
`product was a limited edition item and has not been sold in U.S. interstate commerce for at least
`
`three years.
`
`10.
`
`Upon information and belief, Texas Star formerly sold ROCKIN’ RANCH
`
`CASHEWS under a sub brand, Nature’s Eats, https://www.texasnut.com/nut-and-fruit-brands/.
`
`11.
`
`Texas Star’s
`
`sub brand’s website at https://www.natureseats.com/our-
`
`products/snacking-section does not list the ROCKIN’ RANCH CASHEWS product as a current
`
`offering.
`
`12.
`
`Texas Star’s main website at https://www.texasnut.com/products/ does not list the
`
`ROCKIN’ RANCH CASHEWS product as a current offering.
`
`13.
`
`Upon information and belief, H-E-B Grocery formerly sold the ROCKIN’ RANCH
`
`CASHEWS product but the item is no longer offered for sale https://www.heb.com/product-
`
`detail/nature-s-eats-rocking-ranch-cashews/1766642.
`
`14.
`
`Based on the foregoing, Texas Star is not using the ROCKIN’ RANCH CASHEWS
`
`mark in U.S. interstate commerce, nor does it intend to resume use.
`
`
`
`
`
`

`

`COUNT I – ABANDONMENT
`
`15.
`
`Biena re-alleges each of the foregoing allegations as though set forth entirely
`
`herein.
`
`16.
`
`There is no evidence that Texas Star currently uses the ROCKIN’ RANCH
`
`CASHEWS mark in U.S. interstate commerce.
`
`17.
`
`In addition, the facts alleged above provide a strong inference that Texas Star does
`
`not intend to resume bona fide use in U.S. commerce of the ROCKIN’ RANCH CASHEWS mark
`
`in connection with the goods identified in the ROCKIN’ RANCH CASHEWS Registration.
`
`18.
`
`Accordingly,
`
`the ROCKIN’ RANCH CASHEWS Registration has been
`
`abandoned, within the meaning of 15 U.S.C. § 1127.
`
`For the foregoing reasons, Texas Star’s ROCKIN’ RANCH CASHEWS Registration
`
`should be cancelled under 15 U.S.C. § 1064(3).
`
`WHEREFORE, Biena requests that this Petition for Cancellation be sustained and that U.S.
`
`Trademark Registration No. 5171062 for the ROCKIN’ RANCH CASHEWS mark be cancelled
`
`in its entirety.
`
`
`
`September 23, 2020 Respectfully submitted,
`
` AMIN TALATI WASSERMAN, LLP
`
` /s/ Amanda Roach
`
`Amanda Roach
`George Spatz
`100 S. Wacker Dr., Suite 2000
`Chicago, IL 60606
`(312) 327-3328
`www.amintalati.com
`amanda@amintalati.com
`gspatz@amintalati.com
`
`

`

`
`
`trademark@amintalati.com
`
`ATTORNEYS FOR PETITIONER
`
`

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