estta tracking number: estta1126413 04/12/2021

Trademark Trial and Appeal Board Electronic Filing System. https://estta.uspto.gov

ESTTA Tracking number: ESTTA1126413

Filing date: 04/12/2021

IN THE UNITED STATES PATENT AND TRADEMARK OFFICEBEFORE THE TRADEMARK TRIAL AND APPEAL BOARD

Proceeding 91254501

Party PlaintiffMyx Fitness LLC and Palm Ventures LLC

CorrespondenceAddress

JESSICA S RUTHERFORDFERDINAND IP LLC1221 POST ROAD EASTWILTON, CT 06880UNITED STATESPrimary Email: [email protected]

Submission Plaintiff's Notice of Reliance

Filer's Name Jessica S. Rutherford

Filer's email [email protected], [email protected], [email protected]

Signature /jessica s. rutherford/

Date 04/12/2021

Attachments Notice of Reliance Opp No.91254501 v2.pdf(133838 bytes )Exhibit 1.pdf(1040604 bytes )Exhibit 2.pdf(292707 bytes )Exhibit 3.pdf(345935 bytes )Exhibit 4_Redacted.pdf(511596 bytes )Exhibit 5.pdf(389204 bytes )Exhibit 6.pdf(427246 bytes )

https://estta.uspto.gov

1

UNITED STATES PATENT AND TRADEMARK OFFICE

TRADEMARK TRIAL AND APPEAL BOARD

In the Matter of Application Serial No. 88/250,565

For the Mark: MIXFIT INTELLIGENT NUTRITION ASSISTANT

Published in the Official Gazette on November 12, 2019

---------------------------------------------------------------x

Palm Ventures LLC and :

Myx Fitness, LLC : Opposition No. 91254501

:

:

Opposers, :

:

v. :

:

Mixfit, Inc., :

:

Applicant. :

---------------------------------------------------------------x

OPPOSERS PALM VENTURES LLC AND MYX FITNESS, LLC’S

FIRST NOTICE OF RELIANCE

Pursuant to Trademark Trial and Appeal Board Manual of Procedure (“TBMP”) § 704

and 37 CFR §§ 2.120 and 2.122, Opposers Palm Ventures LLC and Myx Fitness, LLC

(“Opposers”) hereby notice their reliance on the following attached exhibits and request that they

be made of evidence in support of Opposers.

I. RECORDS OF APPLICANT’S MITFIT MARK

Opposers hereby serve notice pursuant to 37 CFR §§ 2.120(k)(3)(i) & 2.120(k)(5) and

TBMP §§ 704.10 & 704.11 that they intend to rely on the official records of the application file

history for Applicant Mixfit Inc.’s MIXFIT INTELLIGENT NUTRITION ASSISTANT mark,

Serial No. 88/250,565, attached hereto as Exhibit 1 for ready reference.

The application file history will be relied on and is relevant to this proceeding because it

is the subject of this opposition proceeding.

2

II. APPLICANT’S WRITTEN DISCOVERY RESPONSES

Opposers hereby serve notice pursuant to 37 CFR §§ 2.120(k)(3)(i) & 2.120(k)(5) and

TBMP §§ 704.10 & 704.11 that they intend to rely on Applicant’s responses to Opposers’

Interrogatory and Production Requests in this opposition proceeding. These documents are

identified as Exhibits 2-6 and identified below for ready reference.

Opposers rely on these written discovery responses for the purposes of showing, inter

alia: (i) similarity of the marks; (ii) the similarity of the goods and services allegedly applied-for

and offered under Applicant’s MIXFIT INTELLIGENT NUTRITION ASSISTANT mark and

Opposers’ Trademarks; (iii) the likelihood of confusion between Opposers’ and Applicant’s

respective marks; and (iv) Applicant’s intent to unjustly enrich from the consumer goodwill in

Opposers’ MYX and MYX FITNESS Trademarks.

Respectfully submitted,

Dated: April 12, 2021

____/Jessica S. Rutherford/_______

Jessica S. Rutherford, Esq.

Ferdinand IP LLC

1221 Post Road East, Suite 302

Westport, CT 06880

(203) 557-4224

Attorneys for Opposers,

Palm Ventures LLC and Myx Fitness, LLC

3

Exhibit # Document

1 Applicant’s MIXFIT INTELLIGENT

NUTRITION ASSISTANT - App Ser No.

88250565

2 Applicant’s Responses to Opposers’ First

Request for Interrogatories (Aug. 26, 2020)

- 2020-08-26_Applicant response to

ROGS_9125401

3 Applicant’s Supplemental Responses to

Opposers’ First Request for

Interrogatories (Oct. 23, 2020) - 2020-10-

23_Applicant supplemental response to First

ROGS_91254501

4 Applicant’s Responses to Opposing

Counsel’s Letter (Dec. 22, 2020) - 2020-12-

29 Letter to MYX Parties

5 Applicant’s Responses to Opposers’ First

Set of Requests for Production and Things

(Aug. 26, 2020) - 2020-08-26_Applicant

response to First RFP_91254501

6 Applicant’s Supplemental Responses to

Opposers’ First Set of Requests for

Production and Things (Oct. 23, 2020) -

2020-10-23_Applicant supplemental response

to First RFP_91254501

4

CERTIFICATE OF SERVICE

I hereby certify that a true copy of the foregoing Opposers’ First Notice of Reliance was

served electronically upon Applicant, with a link to a Dropbox folder containing the exhibits as

agreed by the parties, via email to the following address:

Leo V. Gureff

Muncy, Geissler, Olds & Lowe, P.C.

4000 Legato Road, Suite 310 Fairfax, VA 22033

[email protected]

[email protected]


Dated: April 12, 2021

____/Jessica S. Rutherford/_______

Jessica S. Rutherford, Esq.

Ferdinand IP LLC

1221 Post Road East, Suite 302

Westport, CT 06880

(203) 557-4224

Attorneys for Opposers,

Palm Ventures LLC and Myx Fitness, LLC

EXHIBIT 1

Palm Ventures LLC & Myx Fitness, LLC v. Mixfit, Inc. Opposition No.

91254501

Palm Ventures LLC & Myx Fitness, LLC

Mark Information

Mark LiteralElements:

MIXFIT INTELLIGENT NUTRITION ASSISTANT

Standard CharacterClaim:

Yes. The mark consists of standard characters without claim to any particular font style, size, or color.

Mark DrawingType:

4 - STANDARD CHARACTER MARK

Disclaimer: "INTELLIGENT NUTRITION ASSISTANT"

Goods and Services

Note:The following symbols indicate that the registrant/owner has amended the goods/services:

Brackets [..] indicate deleted goods/services;Double parenthesis ((..)) identify any goods/services not claimed in a Section 15 affidavit of incontestability; andAsterisks *..* identify additional (new) wording in the goods/services.

For: Downloadable computer software and downloadable mobile applications relating to personalized nutrition for determining apersonalized dosage of nutraceuticals and other supplements from a dispensing device in the nature of electronic automated beverageand nutraceutical dispensing machines and communicating information with the dispensing devices, enabling users to receive abeverage from the dispensing devices containing a personalized dosage of nutraceuticals and other supplements; downloadablecomputer software and downloadable mobile applications for enabling users to receive, access, and provide health, lifestyle andnutritional data and information for a beverage and nutraceutical machine to formulate a beverage containing a personalized dosage ofnutraceuticals and other supplements based on the data and information; downloadable computer software and mobile applications forremote operation of personalized nutrition dispensing devices in the nature of electric automated beverage dispensers andtransmission of data between the personalized nutrition dispensing devices and users' mobile devices and computers using wirelesscommunication for facilitating dispensing a beverage containing a personalized dosage of nutraceuticals and other supplements;electronic automated beverage and nutraceutical dispensing systems, not heated or cooled, comprised of a machine that storesnutraceuticals and other supplements and dispenses a beverage containing a personalized, pre-determined dosage of nutraceuticalsand other supplements at specified times and has internet connectivity with other devices for collecting, integrating and processingusers' health, lifestyle and nutritional data for enabling the machine to dispense a beverage containing a personalized dosage ofnutraceuticals and other supplements

InternationalClass(es):

009 - Primary Class U.S Class(es): 021, 023, 026, 036, 038

Class Status: ACTIVE

Basis: 1(b)

For: Providing an online, non-downloadable, internet-based software application for use in the field of personalized nutrition, namely, fordetermining a personalized dosage of nutraceuticals and other supplements from a dispensing device in the nature of electronicautomated beverage and nutraceutical dispensing machines and communicating information with the dispensing devices, enablingusers to receive a beverage containing a personalized dosage of nutraceuticals and other supplements; providing an online, non-

Generated on: This page was generated by TSDR on 2021-04-01 13:08:00 EDT

Mark: MIXFIT INTELLIGENT NUTRITION ASSISTANT

US Serial Number: 88250565 Application FilingDate:

Jan. 04, 2019

Filed as TEAS RF: Yes Currently TEAS RF: Yes

Register: Principal

Mark Type: Trademark, Service Mark

TM5 Common StatusDescriptor:

LIVE/APPLICATION/Opposition Pending

The pending trademark application has been examined by the Office and waspublished for opposition, at which time one or more oppositions were filed butthey have not yet been decided.

Status: An opposition after publication is pending at the Trademark Trial and Appeal Board. For further information, see TTABVUE on theTrademark Trial and Appeal Board web page.

Status Date: Mar. 06, 2020

Publication Date: Nov. 12, 2019

• • •

Mixfit Intelligent Nutrition Assistant

downloadable, internet-based software application in the field of personalized nutrition for enabling users to access personalizednutraceuticals and supplements from a dispensing device in the nature of electronic automated beverage and nutraceutical dispensingmachines based on collective lifestyle, health and nutritional data; providing an online, non-downloadable, internet-based softwareapplication for accessing and viewing information and data pertaining to personalized nutrition services; software as a service (saas)services featuring software for use in the field of personalized nutrition, namely, for determining a personalized dosage ofnutraceuticals and other supplements to enable users to receive a beverage containing a personalized dosage of nutraceuticals andother supplements from a dispensing device in the nature of electronic automated beverage and nutraceutical dispensing machines

InternationalClass(es):

042 - Primary Class U.S Class(es): 100, 101

Class Status: ACTIVE

Basis: 1(b)

Basis Information (Case Level)

Filed Use: No Currently Use: No

Filed ITU: Yes Currently ITU: Yes

Filed 44D: No Currently 44E: No

Filed 44E: No Currently 66A: No

Filed 66A: No Currently No Basis: No

Filed No Basis: No

Current Owner(s) Information

Owner Name: Mixfit Inc.

Owner Address: 51 Melcher StreetBoston, MASSACHUSETTS UNITED STATES 02210

Legal Entity Type: CORPORATION State or CountryWhere Organized:

DELAWARE

Attorney/Correspondence Information

Attorney of Record

Attorney Name: Leo V. Gureff Docket Number: 6618.0007TUS

Attorney PrimaryEmail Address:

[email protected] Attorney EmailAuthorized:

Yes

Correspondent

CorrespondentName/Address:

LEO V GUREFFMUNCY GEISSLER OLDS & LOWE PC4000 LEGATO ROADSUITE 310FAIRFAX, VIRGINIA UNITED STATES 22033

Phone: 703-621-7140 ext 146 Fax: 7036217155

Correspondent e-mail:

[email protected] [email protected] Correspondent e-mail Authorized:

Yes

Domestic Representative - Not Found

Prosecution History

Date DescriptionProceedingNumber

Mar. 06, 2020 OPPOSITION INSTITUTED NO. 999999 254501

Nov. 14, 2019 EXTENSION OF TIME TO OPPOSE RECEIVED

Nov. 12, 2019 OFFICIAL GAZETTE PUBLICATION CONFIRMATION E-MAILED

Nov. 12, 2019 PUBLISHED FOR OPPOSITION

Oct. 23, 2019 NOTIFICATION OF NOTICE OF PUBLICATION E-MAILED

Oct. 08, 2019 APPROVED FOR PUB - PRINCIPAL REGISTER

Oct. 07, 2019 EXAMINER'S AMENDMENT ENTERED 68552

Oct. 07, 2019 ASSIGNED TO LIE 68552

Oct. 07, 2019 NOTIFICATION OF EXAMINERS AMENDMENT E-MAILED 6328

Oct. 07, 2019 EXAMINERS AMENDMENT E-MAILED 6328

Oct. 07, 2019 EXAMINERS AMENDMENT -WRITTEN 74288

Oct. 03, 2019 NOTIFICATION OF NON-FINAL ACTION E-MAILED 6325

Oct. 03, 2019 NON-FINAL ACTION E-MAILED 6325

Oct. 03, 2019 NON-FINAL ACTION WRITTEN 74288

Oct. 02, 2019 PREVIOUS ALLOWANCE COUNT WITHDRAWN

Oct. 01, 2019 WITHDRAWN FROM PUB - OG REVIEW QUERY 99910

Sep. 17, 2019 APPROVED FOR PUB - PRINCIPAL REGISTER

Sep. 17, 2019 ASSIGNED TO EXAMINER 74288

Sep. 13, 2019 TEAS/EMAIL CORRESPONDENCE ENTERED 88889

Sep. 12, 2019 CORRESPONDENCE RECEIVED IN LAW OFFICE 88889

Sep. 12, 2019 TEAS REQUEST FOR RECONSIDERATION RECEIVED

May 29, 2019 NOTIFICATION OF FINAL REFUSAL EMAILED

May 29, 2019 FINAL REFUSAL E-MAILED

May 29, 2019 FINAL REFUSAL WRITTEN 91160

Apr. 12, 2019 TEAS/EMAIL CORRESPONDENCE ENTERED 88889

Apr. 11, 2019 CORRESPONDENCE RECEIVED IN LAW OFFICE 88889

Apr. 11, 2019 TEAS RESPONSE TO OFFICE ACTION RECEIVED

Mar. 25, 2019 NOTIFICATION OF NON-FINAL ACTION E-MAILED 6325

Mar. 25, 2019 NON-FINAL ACTION E-MAILED 6325

Mar. 25, 2019 NON-FINAL ACTION WRITTEN 91160

Mar. 21, 2019 ASSIGNED TO EXAMINER 91160

Jan. 26, 2019 NEW APPLICATION OFFICE SUPPLIED DATA ENTERED IN TRAM

Jan. 08, 2019 NEW APPLICATION ENTERED IN TRAM

TM Staff and Location Information

TM Staff Information

TM Attorney: MICKLEBURGH, LINDA BOH Law OfficeAssigned:

LAW OFFICE 106

File Location

Current Location: PUBLICATION AND ISSUE SECTION Date in Location: Oct. 08, 2019

Proceedings

Summary

Number ofProceedings:

2

Type of Proceeding: Opposition

ProceedingNumber:

91254501 Filing Date: Mar 06, 2020

Status: Pending Status Date: Mar 06, 2020

InterlocutoryAttorney:

MARY CATHERINE FAINT

Defendant

Name: Mixfit Inc.

CorrespondentAddress:

LEO V GUREFFMUNCY GEISSLER OLDS & LOWE PC4000 LEGATO ROAD, SUITE 310FAIRFAX VA UNITED STATES , 22033


[email protected] , [email protected]

Associated marks

Mark Application StatusSerialNumber

RegistrationNumber

MIXFIT INTELLIGENT NUTRITION ASSISTANT Opposition Pending 88250565

Plaintiff(s)

Name: Myx Fitness LLC and Palm Ventures LLC


JESSICA S RUTHERFORDFERDINAND IP LLC1221 POST ROAD EASTWILTON CT UNITED STATES , 06880


[email protected]

Associated marks


RegistrationNumber

MYX Registered 87860883 5923875





MYX Second Extension - Granted 88438097

MYX FITNESS Registered 88149921 5900670

Prosecution History

Entry Number History Text Date Due Date

1 FILED AND FEE Mar 06, 2020

2 NOTICE AND TRIAL DATES SENT; ANSWER DUE: Mar 06, 2020 Apr 15, 2020

3 INSTITUTED Mar 06, 2020

4 ANSWER Apr 14, 2020

5 P MOT FOR EXT W/ CONSENT Nov 09, 2020

6 EXTENSION OF TIME GRANTED Nov 09, 2020

7 P MOT FOR EXT W/ CONSENT Dec 08, 2020

8 EXTENSION OF TIME GRANTED Dec 08, 2020

Type of Proceeding: Extension of Time

ProceedingNumber:

88250565 Filing Date: Nov 14, 2019

Status: Terminated Status Date: Mar 11, 2020

InterlocutoryAttorney:

Defendant

Name: Mixfit Inc.


LEO V. GUREFFMUNCY, GEISSLER, OLDS & LOWE, P.C.4000 LEGATO ROAD; SUITE 310FAIRFAX VA , 22033



Associated marks


RegistrationNumber

MIXFIT INTELLIGENT NUTRITION ASSISTANT Opposition Pending 88250565

Potential Opposer(s)

Name: Myx Fitness LLC


MATTHEW J WIANTMYX FITNESS LLC19 W ELM STGREENWICH CT UNITED STATES , 06830


[email protected] , [email protected] , [email protected]

Associated marks

Mark Application Status Serial NumberRegistrationNumber

Name: Palm Ventures LLC

Correspondent MATTHEW J WIANT

Address: PALM VENTURES LLC19 W ELM STGREENWICH CT UNITED STATES , 06830



Associated marks

Mark Application Status Serial NumberRegistrationNumber

Prosecution History

Entry Number History Text Date Due Date

1 FIRST 90-DAY REQUEST TO EXT TIME TO OPPOSE Nov 14, 2019

2 EXT GRANTED Nov 14, 2019

3 FIRST 90-DAY REQUEST TO EXT TIME TO OPPOSE Nov 14, 2019

4 EXT GRANTED Nov 14, 2019

From: [email protected]

Sent: Tuesday, November 12, 2019 01:01 AM

To: [email protected]

Cc: [email protected]

Subject: Official USPTO Notice of Publication Confirmation: U.S. Trademark SN 88250565: MIXFIT INTELLIGENT NUTRITION ASSISTANT:Docket/Reference No. 6618.0007TUS

TRADEMARK OFFICIAL GAZETTE PUBLICATION CONFIRMATION

U.S. Serial Number: 88250565Mark: MIXFIT INTELLIGENT NUTRITION ASSISTANTInternational Class(es): 009, 042Owner: Mixfit Inc.Docket/Reference Number: 6618.0007TUS

The mark identified above has been published in the Trademark Official Gazette (TMOG) on Nov 12, 2019.

To Review the Mark in the TMOG:

Click on the following link or paste the URL into an internet browser: https://tmog.uspto.gov/#issueDate=2019-11-12&serialNumber=88250565

On the publication date or shortly thereafter, the applicant should carefully review the information that appears in the TMOG for accuracy. For corrections or amendments afterpublication, please use the Post-Approval/Publication/Post-Notice of Allowance (NOA) Amendment Form, accessible at https://teas.uspto.gov/office/ppa. For generalinformation about this notice, please contact the Trademark Assistance Center at 1-800-786-9199.

Significance of Publication for Opposition:

* Any party who believes it will be damaged by the registration of the mark may file a notice of opposition (or extension of time therefor) with the Trademark Trial and Appeal

Board. If no party files an opposition or extension request within thirty (30) days after the publication date, then eleven (11) weeks after the publication date a notice ofallowance (NOA) should issue. (Note: The applicant must file a complete Statement of Use or Extension Request with the required fees within six (6) months after theNOA issues to avoid abandonment of the application.)

To check the status of the application, go to https://tsdr.uspto.gov/#caseNumber=88250565&caseType=SERIAL_NO&searchType=statusSearch or contact the TrademarkAssistance Center at 1-800-786-9199. Please check the status of the application at least every three (3) months after the application filing date.

To view this notice and other documents for this application on-line, go tohttps://tsdr.uspto.gov/#caseNumber=88250565&caseType=SERIAL_NO&searchType=documentSearch. NOTE: This notice will only become available on-line the next

business day after receipt of this e-mail.

https://tmog.uspto.gov/#issueDate=2019-11-12&serialNumber=88250565

https://teas.uspto.gov/office/ppa

https://tsdr.uspto.gov/#caseNumber=88250565&caseType=SERIAL_NO&searchType=statusSearch

https://tsdr.uspto.gov/#caseNumber=88250565&caseType=SERIAL_NO&searchType=documentSearch

From: [email protected]

Sent: Wednesday, October 23, 2019 04:21 AM

To: [email protected]

Cc: [email protected]

Subject: Official USPTO Notification of Notice of Publication: U.S. Trademark SN 88250565: MIXFIT INTELLIGENT NUTRITION ASSISTANT:Docket/Reference No. 6618.0007TUS

NOTIFICATION OF "NOTICE OF PUBLICATION"

Your trademark application (U.S. Serial No. 88250565) is scheduled to publish in the Official Gazette on Nov 12, 2019. To preview the Notice of Publication, go to theTrademark Status & Document Retrieval (TSDR) database, accessible at https://tsdr.uspto.gov/search.action?sn=88250565. If you have difficulty accessing the Notice ofPublication, contact the Trademark Assistance Center (TAC) by e-mail at [email protected] or by telephone at 800-786-9199.

PLEASE NOTE: 1. The Notice of Publication may not be immediately available but will be viewable within 24 hours of this e-mail notification. 2. You will receive a second e-mail on the actual "Publication Date," which will include a link to the issue of the Official Gazette in which the mark has published.

Please confirm that the correspondence information shown in TSDR is correct. If the correspondence information is not correct, please update this information using the onlineChange of Correspondence Address Form, accessible at https://teas.uspto.gov/ccr/cca.

Do NOT hit "Reply" to this e-mail notification. If you find an error in the Notice of Publication, update the information using the Post-Approval/Publication/Post-Notice ofAllowance (NOA) Amendment Form, accessible at https://teas.uspto.gov/office/ppa.

https://tsdr.uspto.gov/search.action?sn=88250565

https://teas.uspto.gov/ccr/cca

https://teas.uspto.gov/office/ppa

UNITED STATES PATENT AND TRADEMARK OFFICE (USPTO)

Commissioner for Trademarkswww.uspto.gov

OFFICIAL USPTO NOTICE OF PUBLICATION UNDER 12(a) U.S. Application Serial No. 88250565

Mark: MIXFIT INTELLIGENT NUTRITION ASSISTANT

International Class(es): 009, 042

Owner: Mixfit Inc.

Docket/Reference No. 6618.0007TUS

Issue Date: October 23, 2019

Your mark is scheduled to publish in the Trademark Official Gazette (TMOG) on November 12, 2019.

Your mark appears to be entitled to register on the Principal Register upon the acceptance of a statement of use, subject to any claims of concurrent use.

What happens when your mark publishes. Within 30 days of the publication date, any party who believes it will be damaged by the registration of the mark may file a noticeof opposition (or extension of time) with the Trademark Trial and Appeal Board. If no objection is filed, we will issue a Notice of allowance.

View your mark in the TMOG after the publication date at https://tmog.uspto.gov/ by selecting your publication date in the "issues" field, entering your serial number in the"search by" field, and clicking on the magnifying glass.

Ensure that the information in the TMOG is correct. If any information is incorrect, promptly request correction using the "Post-Approval/Publication/Post-Notice ofAllowance (NOA) Amendment" form at https://teas.uspto.gov/office/ppa/. For more information, see https://www.uspto.gov/trademark/trademark-updates-and-announcements/procedures-submitting-amendmentscorrections-trademark.

Direct questions about this notice to the Trademark Assistance Center (TAC)at 1-800-786-9199 (select option 1) or [email protected].

Email Address(es):

[email protected]@mg-ip.com

https://tmog.uspto.gov

https://teas.uspto.gov/office/ppa/

https://www.uspto.gov/trademark/trademark-updates-and-announcements/procedures-submitting-amendmentscorrections-trademark

https://www.uspto.gov/trademark/trademark-updates-and-announcements/procedures-submitting-amendmentscorrections-trademark

mailto:[email protected]

Trademark Snap Shot Publication Stylesheet(Table presents the data on Publication Approval)

OVERVIEW

SERIAL NUMBER 88250565 FILING DATE 01/04/2019

REG NUMBER 0000000 REG DATE N/A

REGISTER PRINCIPAL MARK TYPE TRADEMARK

INTL REG # N/A INTL REG DATE N/A

TM ATTORNEY MICKLEBURGH, LINDA BOH L.O. ASSIGNED 106

PUB INFORMATION

RUN DATE 10/09/2019

PUB DATE 11/12/2019

STATUS 681-PUBLICATION/ISSUE REVIEW COMPLETE

STATUS DATE 10/08/2019

LITERAL MARK ELEMENT MIXFIT INTELLIGENT NUTRITION ASSISTANT

DATE ABANDONED N/A DATE CANCELLED N/A

SECTION 2F NO SECTION 2F IN PART NO

SECTION 8 NO SECTION 8 IN PART NO

SECTION 15 NO REPUB 12C N/A

RENEWAL FILED NO RENEWAL DATE N/A

DATE AMEND REG N/A

FILING BASIS

FILED BASIS CURRENT BASIS AMENDED BASIS

1 (a) NO 1 (a) NO 1 (a) NO

1 (b) YES 1 (b) YES 1 (b) NO

44D NO 44D NO 44D NO

44E NO 44E NO 44E NO

66A NO 66A NO

NO BASIS NO NO BASIS NO

MARK DATA

STANDARD CHARACTER MARK YES


MARK DRAWING CODE 4-STANDARD CHARACTER MARK

COLOR DRAWING FLAG NO

CURRENT OWNER INFORMATION

PARTY TYPE 10-ORIGINAL APPLICANT

NAME Mixfit Inc.

ADDRESS 51 Melcher StreetBoston, MA 02210

ENTITY 03-CORPORATION

CITIZENSHIP Delaware

GOODS AND SERVICES

INTERNATIONAL CLASS 009

DESCRIPTION TEXT Downloadable computer software and downloadable mobile applications relating topersonalized nutrition for determining a personalized dosage of nutraceuticals andother supplements from a dispensing device in the nature of electronic automatedbeverage and nutraceutical dispensing machines and communicating informationwith the dispensing devices, enabling users to receive a beverage from thedispensing devices containing a personalized dosage of nutraceuticals and othersupplements; downloadable computer software and downloadable mobileapplications for enabling users to receive, access, and provide health, lifestyle andnutritional data and information for a beverage and nutraceutical machine toformulate a beverage containing a personalized dosage of nutraceuticals and othersupplements based on the data and information; downloadable computer softwareand mobile applications for remote operation of personalized nutrition dispensingdevices in the nature of electric automated beverage dispensers and transmission ofdata between the personalized nutrition dispensing devices and users' mobiledevices and computers using wireless communication for facilitating dispensing abeverage containing a personalized dosage of nutraceuticals and othersupplements; electronic automated beverage and nutraceutical dispensing systems,not heated or cooled, comprised of a machine that stores nutraceuticals and othersupplements and dispenses a beverage containing a personalized, pre-determineddosage of nutraceuticals and other supplements at specified times and has internetconnectivity with other devices for collecting, integrating and processing users'health, lifestyle and nutritional data for enabling the machine to dispense a beveragecontaining a personalized dosage of nutraceuticals and other supplements


DESCRIPTION TEXT Providing an online, non-downloadable, internet-based software application for usein the field of personalized nutrition, namely, for determining a personalized dosageof nutraceuticals and other supplements from a dispensing device in the nature ofelectronic automated beverage and nutraceutical dispensing machines andcommunicating information with the dispensing devices, enabling users to receive abeverage containing a personalized dosage of nutraceuticals and othersupplements; providing an online, non-downloadable, internet-based softwareapplication in the field of personalized nutrition for enabling users to accesspersonalized nutraceuticals and supplements from a dispensing device in the natureof electronic automated beverage and nutraceutical dispensing machines based oncollective lifestyle, health and nutritional data; providing an online, non-downloadable, internet-based software application for accessing and viewinginformation and data pertaining to personalized nutrition services; software as aservice (saas) services featuring software for use in the field of personalizednutrition, namely, for determining a personalized dosage of nutraceuticals and othersupplements to enable users to receive a beverage containing a personalizeddosage of nutraceuticals and other supplements from a dispensing device in thenature of electronic automated beverage and nutraceutical dispensing machines

GOODS AND SERVICES CLASSIFICATION

INTERNATIONALCLASS

009 FIRST USE DATE NONE FIRST USE INCOMMERCEDATE

NONE CLASS STATUS 6-ACTIVE

INTERNATIONALCLASS



MISCELLANEOUS INFORMATION/STATEMENTS

CHANGE IN REGISTRATION NO

DISCLAIMER W/PREDETER TXT "INTELLIGENT NUTRITION ASSISTANT"

PSEUDO MARK MIX FIT INTELLIGENT NUTRITION ASSISTANT

PROSECUTION HISTORY

DATE ENT CD ENT TYPE DESCRIPTION ENT NUM

10/08/2019 CNSA P APPROVED FOR PUB - PRINCIPAL REGISTER 028

10/07/2019 XAEC I EXAMINER'S AMENDMENT ENTERED 027

10/07/2019 ALIE A ASSIGNED TO LIE 026

10/07/2019 GNEN O NOTIFICATION OF EXAMINERS AMENDMENT E-MAILED 025

10/07/2019 GNEA O EXAMINERS AMENDMENT E-MAILED 024

10/07/2019 CNEA R EXAMINERS AMENDMENT -WRITTEN 023

10/03/2019 GNRN O NOTIFICATION OF NON-FINAL ACTION E-MAILED 022

10/03/2019 GNRT O NON-FINAL ACTION E-MAILED 021

10/03/2019 CNRT R NON-FINAL ACTION WRITTEN 020

10/02/2019 ZZZX Z PREVIOUS ALLOWANCE COUNT WITHDRAWN 019

10/01/2019 PBCR Z WITHDRAWN FROM PUB - OG REVIEW QUERY 018


09/17/2019 DOCK D ASSIGNED TO EXAMINER 016

09/13/2019 TEME I TEAS/EMAIL CORRESPONDENCE ENTERED 015

09/12/2019 CRFA I CORRESPONDENCE RECEIVED IN LAW OFFICE 014

09/12/2019 ERFR I TEAS REQUEST FOR RECONSIDERATION RECEIVED 013

05/29/2019 GNFN O NOTIFICATION OF FINAL REFUSAL EMAILED 012

05/29/2019 GNFR O FINAL REFUSAL E-MAILED 011

05/29/2019 CNFR R FINAL REFUSAL WRITTEN 010



04/11/2019 TROA I TEAS RESPONSE TO OFFICE ACTION RECEIVED 007


03/25/2019 GNRT F NON-FINAL ACTION E-MAILED 005



01/26/2019 NWOS I NEW APPLICATION OFFICE SUPPLIED DATA ENTERED IN TRAM 002

01/08/2019 NWAP I NEW APPLICATION ENTERED IN TRAM 001

CURRENT CORRESPONDENCE INFORMATION

ATTORNEY Leo V. Gureff

CORRESPONDENCE ADDRESS Leo V. GureffMUNCY, GEISSLER, OLDS & LOWE, P.C.4000 Legato Road; suite 310Fairfax, VA 22033

DOMESTIC REPRESENTATIVE NONE

Trademark Snap Shot Amendment & Mail Processing Stylesheet(Table presents the data on Amendment & Mail Processing Complete)

OVERVIEW






PUB INFORMATION

RUN DATE 10/08/2019

PUB DATE N/A

STATUS 647-EXAMINERS AMENDMENT - MAILED








DATE AMEND REG N/A

FILING BASIS


1 (a) NO 1 (a) NO 1 (a) NO

1 (b) YES 1 (b) YES 1 (b) NO



66A NO 66A NO


MARK DATA







NAME Mixfit Inc.




GOODS AND SERVICES


DESCRIPTION TEXT Downloadable computer software and downloadable mobile applications relating topersonalized nutrition for determining a personalized dosage of nutraceuticals andother supplements from a dispensing device in the nature of electronic automatedbeverage and nutraceutical dispensing machines and communicating informationwith the dispensing devices, enabling users to receive a beverage from thedispensing devices containing a personalized dosage of nutraceuticals and othersupplements; downloadable computer software and downloadable mobileapplications for enabling users to receive, access, and provide health, lifestyle andnutritional data and information for a beverage and nutraceutical machine toformulate a beverage containing a personalized dosage of nutraceuticals and othersupplements based on the data and information; downloadable computer softwareand mobile applications for remote operation of personalized nutrition dispensingdevices in the nature of electric automated beverage dispensers and transmission ofdata between the personalized nutrition dispensing devices and users' mobiledevices and computers using wireless communication for facilitating dispensing abeverage containing a personalized dosage of nutraceuticals and othersupplements; electronic automated beverage and nutraceutical dispensing systems,not heated or cooled, comprised of a machine that stores nutraceuticals and othersupplements and dispenses a beverage containing a personalized, pre-determineddosage of nutraceuticals and other supplements at specified times and has internetconnectivity with other devices for collecting, integrating and processing users'health, lifestyle and nutritional data for enabling the machine to dispense a beveragecontaining a personalized dosage of nutraceuticals and other supplements


DESCRIPTION TEXT Providing an online, non-downloadable, internet-based software application for usein the field of personalized nutrition, namely, for determining a personalized dosageof nutraceuticals and other supplements from a dispensing device in the nature ofelectronic automated beverage and nutraceutical dispensing machines andcommunicating information with the dispensing devices, enabling users to receive abeverage containing a personalized dosage of nutraceuticals and othersupplements; providing an online, non-downloadable, internet-based softwareapplication in the field of personalized nutrition for enabling users to accesspersonalized nutraceuticals and supplements from a dispensing device in the natureof electronic automated beverage and nutraceutical dispensing machines based oncollective lifestyle, health and nutritional data; providing an online, non-downloadable, internet-based software application for accessing and viewinginformation and data pertaining to personalized nutrition services; software as aservice (saas) services featuring software for use in the field of personalizednutrition, namely, for determining a personalized dosage of nutraceuticals and othersupplements to enable users to receive a beverage containing a personalizeddosage of nutraceuticals and other supplements from a dispensing device in thenature of electronic automated beverage and nutraceutical dispensing machines


INTERNATIONALCLASS



INTERNATIONALCLASS







PROSECUTION HISTORY


10/07/2019 XAEC I EXAMINER'S AMENDMENT ENTERED 027

10/07/2019 ALIE A ASSIGNED TO LIE 026

10/07/2019 GNEN O NOTIFICATION OF EXAMINERS AMENDMENT E-MAILED 025

10/07/2019 GNEA O EXAMINERS AMENDMENT E-MAILED 024

10/07/2019 CNEA R EXAMINERS AMENDMENT -WRITTEN 023


10/03/2019 GNRT O NON-FINAL ACTION E-MAILED 021


10/02/2019 ZZZX Z PREVIOUS ALLOWANCE COUNT WITHDRAWN 019

10/01/2019 PBCR Z WITHDRAWN FROM PUB - OG REVIEW QUERY 018




















CORRESPONDENCE ADDRESS Leo V. GureffMUNCY, GEISSLER, OLDS & LOWE, P.C.4000 Legato Road; suite 310Fairfax, VA 22033


To: Mixfit Inc. ([email protected])

Subject: U.S. Trademark Application Serial No. 88250565 - MIXFIT INTELLIGENT NUTRITION -

6618.0007TUS

Sent: October 07, 2019 01:31:26 PM

Sent As: [email protected]

Attachments:

United States Patent and Trademark Office (USPTO)Office Action (Official Letter) About Applicant’s Trademark Application

U.S. Application

Serial No.

88250565

Mark: MIXFIT

INTELLIGENT

NUTRITION

Correspondence

Address:

Leo V.

Gureff

MUNCY,

GEISSLER,

OLDS & LOWE,

P.C.

4000 Legato

Road; suite 310

Fairfax VA

22033

Applicant:

Mixfit Inc.

Reference/Docket

No.

6618.0007TUS

Correspondence

Email Address:

mailroom@mg-

ip.com

EXAMINER’S AMENDMENT

Issue date: October 07, 2019

USPTO database searched; no conflicting marks found. The trademark examining attorney searched the USPTO database of registered and

pending marks and found no conflicting marks that would bar registration under Trademark Act Section 2(d). 15 U.S.C. §1052(d); TMEP

§704.02.

Application has been amended as shown below. As agreed to by Leo V. Gureff on 10-7-2019, the examining attorney has amended the

application as shown below. Please notify the examining attorney immediately of any objections. TMEP §707. Otherwise, no response is

required. Id. In addition, applicant is advised that amendments to the goods and/or services are permitted only if they clarify or limit them;

amendments that add to or broaden the scope of the goods and/or services are not permitted. 37 C.F.R. §2.71(a).


The class 9 identification of goods is amended to read as follows: “Downloadable computer software and downloadable mobile applications

relating to personalized nutrition for determining a personalized dosage of nutraceuticals and other supplements from a dispensing device in the

nature of electronic automated beverage and nutraceutical dispensing machines and communicating information with the dispensing devices,

enabling users to receive a beverage from the dispensing devices containing a personalized dosage of nutraceuticals and other supplements;

downloadable computer software and downloadable mobile applications for enabling users to receive, access, and provide health, lifestyle and

nutritional data and information for a beverage and nutraceutical machine to formulate a beverage containing a personalized dosage of

nutraceuticals and other supplements based on the data and information; downloadable computer software and mobile applications for remote

operation of personalized nutrition dispensing devices in the nature of electric automated beverage dispensers and transmission of data between

the personalized nutrition dispensing devices and users' mobile devices and computers using wireless communication for facilitating dispensing a

beverage containing a personalized dosage of nutraceuticals and other supplements; electronic automated beverage and nutraceutical dispensing

systems, not heated or cooled, comprised of a machine that stores nutraceuticals and other supplements and dispenses a beverage containing a

personalized, pre-determined dosage of nutraceuticals and other supplements at specified times and has internet connectivity with other devices

for collecting, integrating and processing users' health, lifestyle and nutritional data for enabling the machine to dispense a beverage containing a

personalized dosage of nutraceuticals and other supplements” in International Class 9. See TMEP §§1402.01, 1402.01(e).

/Linda Mickleburgh/

Linda Mickleburgh

Examining Attorney Law Office 106

571-272-9198

[email protected]



6618.0007TUS

Sent: October 07, 2019 01:31:29 PM


Attachments:

United States Patent and Trademark Office (USPTO)

USPTO OFFICIAL NOTICE

Office Action (Official Letter) has issued

on October 07, 2019 for

U.S. Trademark Application Serial No. 88250565

Your trademark application has been reviewed by a trademark examining attorney. As part of that review, the assigned attorney hasissued an official letter. Please follow the steps below.

(1) Read the official letter. No response is necessary.

(2) Direct questions about the contents of the Office action to the assigned attorney below.

/Linda Mickleburgh/

Linda Mickleburgh


571-272-9198

[email protected]

Direct questions about navigating USPTO electronic forms, the USPTO website, the application process, the status of yourapplication, and/or whether there are outstanding deadlines or documents related to your file to the Trademark Assistance Center(TAC).

GENERAL GUIDANCE· Check the status of your application periodically in the Trademark Status & Document Retrieval (TSDR) database to avoid

missing critical deadlines.

· Update your correspondence email address, if needed, to ensure you receive important USPTO notices about yourapplication.

· Beware of misleading notices sent by private companies about your application. Private companies not associated withthe USPTO use public information available in trademark registrations to mail and email trademark-related offers and notices –most of which require fees. All official USPTO correspondence will only be emailed from the domain “@uspto.gov.”


http://tsdr.uspto.gov/view.action?sn=88250565&type=EXA&date=20191007#tdrlink

http://tsdr.uspto.gov/view.action?sn=88250565&type=EXA&date=20191007#tdrlink

https://www.uspto.gov/trademark

https://www.uspto.gov/learning-and-resources/support-centers/trademark-assistance-center


https://www.uspto.gov/trademarks-application-process/check-status-view-documents

http://tsdr.uspto.gov/


https://www.uspto.gov/trademarks-getting-started/caution-misleading-notices



6618.0007TUS

Sent: October 03, 2019 03:25:10 PM


Attachments:


Office Action (Official Letter) About Applicant’s Trademark Application

U.S. Application

Serial No.

88250565

Mark: MIXFIT

INTELLIGENT

NUTRITION

Correspondence

Address:

Leo V. Gureff

MUNCY,

GEISSLER,

OLDS & LOWE,

P.C.

4000 Legato

Road; suite 310

Fairfax VA

22033

Applicant:

Mixfit Inc.

Reference/Docket

No.

6618.0007TUS

Correspondence

Email Address:

mailroom@mg-

ip.com

NONFINAL OFFICE ACTION

The USPTO must receive applicant’s response to this letter within six months of the issue date below or the application will beabandoned. Respond using the Trademark Electronic Application System (TEAS). A link to the appropriate TEAS response form appears at the

end of this Office action.

Issue date: October 03, 2019

This application was approved for publication on September 17, 2019. See 37 C.F.R. §2.80. However, approval of the application has been

withdrawn to address the issue or issues below. See TMEP §706.01. The trademark examining attorney apologizes for any inconvenience this

may cause applicant.

Under Nice 11-2019, computer software must be specified as “downloadable” and/or “recorded” to clarify the nature of the goods. This

wording is no longer acceptable. This entry has been replaced by two entries for downloadable and recorded formats of these goods, respectively,


https://www.uspto.gov/trademarks-application-process/abandoned-applications

in Class 9. Therefore all references to software in the goods and services must reference either “downloadable” and/or “recorded” for class 9

goods, or “Non-downloadable” for services. See TMEP §1402.03(d).

Therefore, for class 9 goods, this clarification is required. Any wording below in all CAPITALS has been added by the examiner to fix an issue.

“RECORDED Computer software and downloadable mobile applications relating to personalized nutrition for determining a personalized

dosage of nutraceuticals and other supplements from a dispensing device in the nature of electronic automated beverage and nutraceutical

dispensing machines and communicating information with the dispensing devices, enabling users to receive a beverage from the dispensing

devices containing a personalized dosage of nutraceuticals and other supplements; RECORDED computer software and downloadable mobile

applications for enabling users to receive, access, and provide health, lifestyle and nutritional data and information for a beverage and

nutraceutical machine to formulate a beverage containing a personalized dosage of nutraceuticals and other supplements based on the data and

information; downloadable computer software and mobile applications for remote operation of personalized nutrition dispensing devices in the

nature of electric automated beverage dispensers and transmission of data between the personalized nutrition dispensing devices and users'

mobile devices and computers using wireless communication for facilitating dispensing a beverage containing a personalized dosage of

nutraceuticals and other supplements; electronic automated beverage and nutraceutical dispensing systems, not heated or cooled, comprised of a

machine that stores nutraceuticals and other supplements and dispenses a beverage containing a personalized, pre-determined dosage of

nutraceuticals and other supplements at specified times and has internet connectivity with other devices for collecting, integrating and processing

users' health, lifestyle and nutritional data for enabling the machine to dispense a beverage containing a personalized dosage of nutraceuticals and

other supplements” in International Class 9

Applicant’s goods and/or services may be clarified or limited, but may not be expanded beyond those originally itemized in the application or as

acceptably amended. See 37 C.F.R. §2.71(a); TMEP §1402.06. Applicant may clarify or limit the identification by inserting qualifying language

or deleting items to result in a more specific identification; however, applicant may not substitute different goods and/or services or add goods

and/or services not found or encompassed by those in the original application or as acceptably amended. See TMEP §1402.06(a)-(b). The scope

of the goods and/or services sets the outer limit for any changes to the identification and is generally determined by the ordinary meaning of the

wording in the identification. TMEP §§1402.06(b), 1402.07(a)-(b). Any acceptable changes to the goods and/or services will further limit scope,

and once goods and/or services are deleted, they are not permitted to be reinserted. TMEP §1402.07(e).

For assistance with identifying and classifying goods and services in trademark applications, please see the USPTO’s online searchable U.S.

Acceptable Identification of Goods and Services Manual. See TMEP §1402.04.

TEAS PLUS OR TEAS REDUCED FEE (TEAS RF) APPLICANTS – TO MAINTAIN LOWER FEE, ADDITIONALREQUIREMENTS MUST BE MET, INCLUDING SUBMITTING DOCUMENTS ONLINE: Applicants who filed their application online

using the lower-fee TEAS Plus or TEAS RF application form must (1) file certain documents online using TEAS, including responses to Office

actions (see TMEP §§819.02(b), 820.02(b) for a complete list of these documents); (2) maintain a valid e-mail correspondence address; and (3)

agree to receive correspondence from the USPTO by e-mail throughout the prosecution of the application. See 37 C.F.R. §§2.22(b), 2.23(b);

TMEP §§819, 820. TEAS Plus or TEAS RF applicants who do not meet these requirements must submit an additional processing fee of $125

per class of goods and/or services. 37 C.F.R. §§2.6(a)(1)(v), 2.22(c), 2.23(c); TMEP §§819.04, 820.04. However, in certain situations, TEAS

Plus or TEAS RF applicants may respond to an Office action by authorizing an examiner’s amendment by telephone or e-mail without incurring

this additional fee.

How to respond. Click to file a response to this nonfinal Office action

/Linda Mickleburgh/

Linda Mickleburgh


571-272-9198

[email protected]

https://tmidm.uspto.gov/id-master-list-public.html




http://teas.uspto.gov/office/roa/

RESPONSE GUIDANCEMissing the response deadline to this letter will cause the application to abandon. A response or notice of appeal must be received by

the USPTO before midnight Eastern Time of the last day of the response period. TEAS and ESTTA maintenance or unforeseen

circumstances could affect an applicant’s ability to timely respond.

Responses signed by an unauthorized party are not accepted and can cause the application to abandon. If applicant does not have an

attorney, the response must be signed by the individual applicant, all joint applicants, or someone with legal authority to bind a juristic

applicant. If applicant has an attorney, the response must be signed by the attorney.

If needed, find contact information for the supervisor of the office or unit listed in the signature block.

•

•

•


https://www.uspto.gov/trademarks-application-process/filing-online/filing-documents-during-outage

https://www.uspto.gov/trademarks-application-process/filing-online/filing-documents-during-outage

https://www.uspto.gov/trademarks-maintaining-trademark-registration/responding-office-actions


https://rdms-tmep-vip.uspto.gov/RDMS/detail/manual/TMEP/current/TMEP-600d1e2068.html

https://rdms-tmep-vip.uspto.gov/RDMS/detail/manual/TMEP/current/TMEP-600d1e2068.html

https://www.uspto.gov/trademark/contact-trademarks/other-trademark-contact-information



6618.0007TUS

Sent: October 03, 2019 03:25:11 PM


Attachments:


USPTO OFFICIAL NOTICE

Office Action (Official Letter) has issued

on October 03, 2019 for

U.S. Trademark Application Serial No. 88250565

Your trademark application has been reviewed by a trademark examining attorney. As part of that review, the assigned attorney has issued an

official letter that you must respond to by the specified deadline or your application will be abandoned. Please follow the steps below.

(1) Read the official letter.

(2) Direct questions about the contents of the Office action to the assigned attorney below.

/Linda Mickleburgh/

Linda Mickleburgh


571-272-9198

[email protected]

Direct questions about navigating USPTO electronic forms, the USPTO website, the application process, the status of your application, and/or

whether there are outstanding deadlines or documents related to your file to the Trademark Assistance Center (TAC).

(3) Respond within 6 months (or earlier, if required in the Office action) from October 03, 2019, using the Trademark Electronic Application

System (TEAS). The response must be received by the USPTO before midnight Eastern Time of the last day of the response period. See the

Office action for more information about how to respond.

GENERAL GUIDANCE· Check the status of your application periodically in the Trademark Status & Document Retrieval (TSDR) database to avoid missing

critical deadlines.

· Update your correspondence email address, if needed, to ensure you receive important USPTO notices about your application.

· Beware of misleading notices sent by private companies about your application. Private companies not associated with the USPTO use

public information available in trademark registrations to mail and email trademark-related offers and notices – most of which require fees.

All official USPTO correspondence will only be emailed from the domain “@uspto.gov.”



http://tsdr.uspto.gov/view.action?sn=88250565&type=OOA&date=20191003#tdrlink


https://www.uspto.gov/trademark


https://www.uspto.gov/trademarks-application-process/check-status-view-documents



https://www.uspto.gov/trademarks-getting-started/caution-misleading-notices

Trademark Snap Shot Publication Stylesheet(Table presents the data on Publication Approval)

OVERVIEW






PUB INFORMATION

RUN DATE 09/18/2019

PUB DATE N/A

STATUS 680-APPROVED FOR PUBLICATION








DATE AMEND REG N/A

FILING BASIS


1 (a) NO 1 (a) NO 1 (a) NO

1 (b) YES 1 (b) YES 1 (b) NO



66A NO 66A NO


MARK DATA







NAME Mixfit Inc.




GOODS AND SERVICES


DESCRIPTION TEXT Computer software and downloadable mobile applications relating to personalizednutrition for determining a personalized dosage of nutraceuticals and othersupplements from a dispensing device in the nature of electronic automatedbeverage and nutraceutical dispensing machines and communicating informationwith the dispensing devices, enabling users to receive a beverage from thedispensing devices containing a personalized dosage of nutraceuticals and othersupplements; computer software and downloadable mobile applications for enablingusers to receive, access, and provide health, lifestyle and nutritional data andinformation for a beverage and nutraceutical machine to formulate a beveragecontaining a personalized dosage of nutraceuticals and other supplements based onthe data and information; downloadable computer software and mobile applicationsfor remote operation of personalized nutrition dispensing devices in the nature ofelectric automated beverage dispensers and transmission of data between thepersonalized nutrition dispensing devices and users' mobile devices and computersusing wireless communication for facilitating dispensing a beverage containing apersonalized dosage of nutraceuticals and other supplements; electronic automatedbeverage and nutraceutical dispensing systems, not heated or cooled, comprised ofa machine that stores nutraceuticals and other supplements and dispenses abeverage containing a personalized, pre-determined dosage of nutraceuticals andother supplements at specified times and has internet connectivity with other devicesfor collecting, integrating and processing users' health, lifestyle and nutritional datafor enabling the machine to dispense a beverage containing a personalized dosageof nutraceuticals and other supplements


DESCRIPTION TEXT providing an online, non-downloadable, internet-based software application for use inthe field of personalized nutrition, namely, for determining a personalized dosage ofnutraceuticals and other supplements from a dispensing device in the nature ofelectronic automated beverage and nutraceutical dispensing machines andcommunicating information with the dispensing devices, enabling users to receive abeverage containing a personalized dosage of nutraceuticals and othersupplements; providing an online, non-downloadable, internet-based softwareapplication in the field of personalized nutrition for enabling users to accesspersonalized nutraceuticals and supplements from a dispensing device in the natureof electronic automated beverage and nutraceutical dispensing machines based oncollective lifestyle, health and nutritional data; providing an online, non-downloadable, internet-based software application for accessing and viewinginformation and data pertaining to personalized nutrition services; software as aservice (saas) services featuring software for use in the field of personalizednutrition, namely, for determining a personalized dosage of nutraceuticals and othersupplements to enable users to receive a beverage containing a personalizeddosage of nutraceuticals and other supplements from a dispensing device in thenature of electronic automated beverage and nutraceutical dispensing machines


INTERNATIONALCLASS



INTERNATIONALCLASS







PROSECUTION HISTORY





















CORRESPONDENCE ADDRESS Leo V. GureffMUNCY, GEISSLER, OLDS & LOWE, P.C.4000 Legato Road; suite 310Fairfax VA 22033



OVERVIEW





TM ATTORNEY BURKE, LAUREN ELAN L.O. ASSIGNED 106

PUB INFORMATION

RUN DATE 09/14/2019

PUB DATE N/A

STATUS 645-FINAL REFUSAL - MAILED








DATE AMEND REG N/A

FILING BASIS


1 (a) NO 1 (a) NO 1 (a) NO

1 (b) YES 1 (b) YES 1 (b) NO



66A NO 66A NO


MARK DATA







NAME Mixfit Inc.




GOODS AND SERVICES


DESCRIPTION TEXT Computer software and downloadable mobile applications relating to personalizednutrition for determining a personalized dosage of nutraceuticals and othersupplements from a dispensing device in the nature of electronic automatedbeverage and nutraceutical dispensing machines and communicating informationwith the dispensing devices, enabling users to receive a beverage from thedispensing devices containing a personalized dosage of nutraceuticals and othersupplements; computer software and downloadable mobile applications for enablingusers to receive, access, and provide health, lifestyle and nutritional data andinformation for a beverage and nutraceutical machine to formulate a beveragecontaining a personalized dosage of nutraceuticals and other supplements based onthe data and information; downloadable computer software and mobile applicationsfor remote operation of personalized nutrition dispensing devices in the nature ofelectric automated beverage dispensers and transmission of data between thepersonalized nutrition dispensing devices and users' mobile devices and computersusing wireless communication for facilitating dispensing a beverage containing apersonalized dosage of nutraceuticals and other supplements; electronic automatedbeverage and nutraceutical dispensing systems, not heated or cooled, comprised ofa machine that stores nutraceuticals and other supplements and dispenses abeverage containing a personalized, pre-determined dosage of nutraceuticals andother supplements at specified times and has internet connectivity with other devicesfor collecting, integrating and processing users' health, lifestyle and nutritional datafor enabling the machine to dispense a beverage containing a personalized dosageof nutraceuticals and other supplements


DESCRIPTION TEXT providing an online, non-downloadable, internet-based software application for use inthe field of personalized nutrition, namely, for determining a personalized dosage ofnutraceuticals and other supplements from a dispensing device in the nature ofelectronic automated beverage and nutraceutical dispensing machines andcommunicating information with the dispensing devices, enabling users to receive abeverage containing a personalized dosage of nutraceuticals and othersupplements; providing an online, non-downloadable, internet-based softwareapplication in the field of personalized nutrition for enabling users to accesspersonalized nutraceuticals and supplements from a dispensing device in the natureof electronic automated beverage and nutraceutical dispensing machines based oncollective lifestyle, health and nutritional data; providing an online, non-downloadable, internet-based software application for accessing and viewinginformation and data pertaining to personalized nutrition services; software as aservice (saas) services featuring software for use in the field of personalizednutrition, namely, for determining a personalized dosage of nutraceuticals and othersupplements to enable users to receive a beverage containing a personalizeddosage of nutraceuticals and other supplements from a dispensing device in thenature of electronic automated beverage and nutraceutical dispensing machines


INTERNATIONALCLASS



INTERNATIONALCLASS







PROSECUTION HISTORY



















CORRESPONDENCE ADDRESS Leo V. GureffMUNCY, GEISSLER, OLDS & LOWE, P.C.4000 Legato Road; suite 310Fairfax VA 22033


Under the Paperwork Reduction Act of 1995 no persons are required to respond to a collection of information unless it displays a valid OMB control number. PTO Form 1960 (Rev 10/2011)

OMB No. 0651-0050 (Exp 09/20/2020)

Request for Reconsideration after Final Action

The table below presents the data as entered.

Input Field Entered

SERIAL NUMBER 88250565

LAW OFFICE ASSIGNED LAW OFFICE 106

MARK SECTION

MARK https://tmng-al.uspto.gov/resting2/api/img/88250565/large

LITERAL ELEMENT MIXFIT INTELLIGENT NUTRITION ASSISTANT

STANDARD CHARACTERS YES

USPTO-GENERATED IMAGE YES

MARK STATEMENTThe mark consists of standard characters, without claim to any particular font style,

size or color.

GOODS AND/OR SERVICES SECTION (009)(current)


DESCRIPTION

Computer software and downloadable mobile applications relating to personalized nutrition for determining a personalized dosage of

nutraceuticals and other supplements and communicating with a dispensing device, enabling users to receive a beverage from a dispensing

device containing a personalized dosage of nutraceuticals and other supplements; computer software and downloadable mobile applications for

enabling users to receive, access, and provide health, lifestyle and nutritional data and information for a beverage and nutraceutical machine to

formulate formulating a beverage containing a personalized dosage of nutraceuticals and other supplements based on the data and information;

downloadable computer software and mobile applications that provide users with for remote operation of personalized nutrition dispensing

devices in the nature of electric automated beverage dispensers and transmission of data between the personalized nutrition dispensing devices

and users' mobile devices and computers using wireless communication for facilitating dispensing a beverage containing a personalized dosage

of nutraceuticals and other supplements; electronic automated beverage and nutraceutical dispensing systems, not heated or cooled, comprised

of a machine that stores nutraceuticals and other supplements and dispenses a beverage containing a personalized, pre-determined dosage of

nutraceuticals and other supplements at specified times and has internet connectivity with other devices for collecting, integrating and

processing users' health, lifestyle and nutritional data for enabling the machine to dispense a beverage containing a personalized dosage of

nutraceuticals and other supplements

FILING BASIS Section 1(b)

GOODS AND/OR SERVICES SECTION (009)(proposed)


TRACKED TEXT DESCRIPTION



device containing a personalized dosage of nutraceuticals and other supplements; Computer software and downloadable mobile applications

relating to personalized nutrition for determining a personalized dosage of nutraceuticals and other supplements from a dispensing device in

the nature of electronic automated beverage and nutraceutical dispensing machines and communicating information with the dispensing

devices, enabling users to receive a beverage from the dispensing devices containing a personalized dosage of nutraceuticals and other

supplements; computer software and downloadable mobile applications for enabling users to receive, access, and provide health, lifestyle and

nutritional data and information for a beverage and nutraceutical machine to formulate formulating a beverage containing a personalized

dosage of nutraceuticals and other supplements based on the data and information; computer software and downloadable mobile applications

for enabling users to receive, access, and provide health, lifestyle and nutritional data and information for a beverage and nutraceutical

machine to formulate a beverage containing a personalized dosage of nutraceuticals and other supplements based on the data and information;




of nutraceuticals and other supplements; downloadable computer software and mobile applications for remote operation of personalized

nutrition dispensing devices in the nature of electric automated beverage dispensers and transmission of data between the personalized

nutrition dispensing devices and users' mobile devices and computers using wireless communication for facilitating dispensing a beverage

containing a personalized dosage of nutraceuticals and other supplements; electronic automated beverage and nutraceutical dispensing systems,

not heated or cooled, comprised of a machine that stores nutraceuticals and other supplements and dispenses a beverage containing a

personalized, pre-determined dosage of nutraceuticals and other supplements at specified times and has internet connectivity with other

devices for collecting, integrating and processing users' health, lifestyle and nutritional data for enabling the machine to dispense a beverage

containing a personalized dosage of nutraceuticals and other supplements

FINAL DESCRIPTION


nutraceuticals and other supplements from a dispensing device in the nature of electronic automated beverage and nutraceutical dispensing

machines and communicating information with the dispensing devices, enabling users to receive a beverage from the dispensing devices

containing a personalized dosage of nutraceuticals and other supplements; computer software and downloadable mobile applications for


formulate a beverage containing a personalized dosage of nutraceuticals and other supplements based on the data and information;

downloadable computer software and mobile applications for remote operation of personalized nutrition dispensing devices in the nature of

electric automated beverage dispensers and transmission of data between the personalized nutrition dispensing devices and users' mobile

devices and computers using wireless communication for facilitating dispensing a beverage containing a personalized dosage of nutraceuticals

and other supplements; electronic automated beverage and nutraceutical dispensing systems, not heated or cooled, comprised of a machine that

stores nutraceuticals and other supplements and dispenses a beverage containing a personalized, pre-determined dosage of nutraceuticals and

other supplements at specified times and has internet connectivity with other devices for collecting, integrating and processing users' health,

lifestyle and nutritional data for enabling the machine to dispense a beverage containing a personalized dosage of nutraceuticals and other

supplements




DESCRIPTION

Providing an online, non-downloadable, Internet-based software application for use in the field of personalized nutrition, namely, for

determining a personalized dosage of nutraceuticals and other supplements and communicating with a dispensing device, enabling users to

receive a beverage containing a personalized dosage of nutraceuticals and other supplements; providing an online, non-downloadable, Internet-

based software application in the field of personalized nutrition for enabling users to access users in the nature of personalized nutraceuticals

and supplements and collective lifestyle, health and nutritional data; providing an online, non-downloadable, Internet-based software

application for accessing and viewing information and data pertaining to personalized nutrition services; software as a service (SAAS) services

featuring software for use in the field of personalized nutrition, namely, for determining a personalized dosage of nutraceuticals and other

supplements, enabling users to receive a beverage containing a personalized dosage of nutraceuticals and other supplements







receive a beverage containing a personalized dosage of nutraceuticals and other supplements; providing an online, non-downloadable, internet-

based software application for use in the field of personalized nutrition, namely, for determining a personalized dosage of nutraceuticals and

other supplements from a dispensing device in the nature of electronic automated beverage and nutraceutical dispensing machines and

communicating information with the dispensing devices, enabling users to receive a beverage containing a personalized dosage of

nutraceuticals and other supplements; providing an online, non-downloadable, Internet-based software application in the field of personalized

nutrition for enabling users to access users in the nature of personalized nutraceuticals and supplements and collective lifestyle, health and

nutritional data; providing an online, non-downloadable, internet-based software application in the field of personalized nutrition for enabling

users to access personalized nutraceuticals and supplements from a dispensing device in the nature of electronic automated beverage and

nutraceutical dispensing machines based on collective lifestyle, health and nutritional data; providing an online, non-downloadable, internet-

based software application for accessing and viewing information and data pertaining to personalized nutrition services; software as a service

I

I

I

I

(SAAS) services featuring software for use in the field of personalized nutrition, namely, for determining a personalized dosage of

nutraceuticals and other supplements, enabling users to receive a beverage containing a personalized dosage of nutraceuticals and other

supplements; software as a service (saas) services featuring software for use in the field of personalized nutrition, namely, for determining a

personalized dosage of nutraceuticals and other supplements to enable users to receive a beverage containing a personalized dosage of


machines

FINAL DESCRIPTION

providing an online, non-downloadable, internet-based software application for use in the field of personalized nutrition, namely, for

determining a personalized dosage of nutraceuticals and other supplements from a dispensing device in the nature of electronic automated

beverage and nutraceutical dispensing machines and communicating information with the dispensing devices, enabling users to receive a

beverage containing a personalized dosage of nutraceuticals and other supplements; providing an online, non-downloadable, internet-based

software application in the field of personalized nutrition for enabling users to access personalized nutraceuticals and supplements from a

dispensing device in the nature of electronic automated beverage and nutraceutical dispensing machines based on collective lifestyle, health

and nutritional data; providing an online, non-downloadable, internet-based software application for accessing and viewing information and

data pertaining to personalized nutrition services; software as a service (saas) services featuring software for use in the field of personalized

nutrition, namely, for determining a personalized dosage of nutraceuticals and other supplements to enable users to receive a beverage

containing a personalized dosage of nutraceuticals and other supplements from a dispensing device in the nature of electronic automated

beverage and nutraceutical dispensing machines


ATTORNEY SECTION (current)

NAME Leo V. Gureff

ATTORNEY BAR MEMBERSHIP NUMBER NOT SPECIFIED

YEAR OF ADMISSION NOT SPECIFIED

U.S. STATE/ COMMONWEALTH/ TERRITORY NOT SPECIFIED

FIRM NAME CANTOR COLBURN LLP

STREET 1800 DIAGONAL ROAD; SUITE 400

CITY ALEXANDRIA

STATE Virginia

POSTAL CODE 22314-2840

COUNTRY US

PHONE 703-236-4500 x4117

EMAIL [email protected]

AUTHORIZED TO COMMUNICATE VIA EMAIL Yes

DOCKET/REFERENCE NUMBER MXF0008TUS

ATTORNEY SECTION (proposed)

NAME Leo V. Gureff

ATTORNEY BAR MEMBERSHIP NUMBER XXX

YEAR OF ADMISSION XXXX

U.S. STATE/ COMMONWEALTH/ TERRITORY XX

FIRM NAME MUNCY, GEISSLER, OLDS & LOWE, P.C.

STREET 4000 Legato Road; suite 310

CITY Fairfax

STATE Virginia

POSTAL CODE 22033

COUNTRY United States

PHONE 703-621-7140 ext 146

FAX 7036217155

EMAIL [email protected]


DOCKET/REFERENCE NUMBER 6618.0007TUS

CORRESPONDENCE SECTION (current)

NAME LEO V. GUREFF

FIRM NAME CANTOR COLBURN LLP

STREET 1800 DIAGONAL ROAD; SUITE 400

CITY ALEXANDRIA

STATE Virginia

POSTAL CODE 22314-2840

COUNTRY US

PHONE 703-236-4500 x4117

EMAIL [email protected]; [email protected]


DOCKET/REFERENCE NUMBER MXF0008TUS

CORRESPONDENCE SECTION (proposed)

NAME Leo V. Gureff

FIRM NAME MUNCY, GEISSLER, OLDS & LOWE, P.C.

STREET 4000 Legato Road; suite 310

CITY Fairfax

STATE Virginia

POSTAL CODE 22033


PHONE 703-621-7140 ext 146

FAX 7036217155

EMAIL [email protected]; [email protected]


DOCKET/REFERENCE NUMBER 6618.0007TUS

SIGNATURE SECTION

RESPONSE SIGNATURE /Leo V. Gureff/

SIGNATORY'S NAME Leo V. Gureff

SIGNATORY'S POSITION Attorney of record, DC member

SIGNATORY'S PHONE NUMBER 7036217140

DATE SIGNED 09/12/2019

AUTHORIZED SIGNATORY YES

CONCURRENT APPEAL NOTICE FILED NO

FILING INFORMATION SECTION

SUBMIT DATE Thu Sep 12 15:18:06 EDT 2019

TEAS STAMP

USPTO/RFR-XXX.XXX.XXX.XXX

-20190912151806669583-882

50565-61015fe6a13c55df81d

a6bfebfef05db53b4bd120bdc

166ef14b67ce91f283fbc-N/A

-N/A-20190912151106693208


OMB No. 0651-0050 (Exp 09/20/2020)

Request for Reconsideration after Final Action

To the Commissioner for Trademarks:

Application serial no. 88250565 MIXFIT INTELLIGENT NUTRITION ASSISTANT(Standard Characters, see https://tmng-

al.uspto.gov/resting2/api/img/88250565/large) has been amended as follows:

CLASSIFICATION AND LISTING OF GOODS/SERVICES

Applicant proposes to amend the following class of goods/services in the application:Current: Class 009 for Computer software and downloadable mobile applications relating to personalized nutrition for determining a

personalized dosage of nutraceuticals and other supplements and communicating with a dispensing device, enabling users to receive a beverage

from a dispensing device containing a personalized dosage of nutraceuticals and other supplements; computer software and downloadable mobile


nutraceutical machine to formulate formulating a beverage containing a personalized dosage of nutraceuticals and other supplements based on the

data and information; downloadable computer software and mobile applications that provide users with for remote operation of personalized

nutrition dispensing devices in the nature of electric automated beverage dispensers and transmission of data between the personalized nutrition

dispensing devices and users' mobile devices and computers using wireless communication for facilitating dispensing a beverage containing a

personalized dosage of nutraceuticals and other supplements; electronic automated beverage and nutraceutical dispensing systems, not heated or

cooled, comprised of a machine that stores nutraceuticals and other supplements and dispenses a beverage containing a personalized, pre-

determined dosage of nutraceuticals and other supplements at specified times and has internet connectivity with other devices for collecting,

integrating and processing users' health, lifestyle and nutritional data for enabling the machine to dispense a beverage containing a personalized

dosage of nutraceuticals and other supplements

Original Filing Basis:

Filing Basis: Section 1(b), Intent to Use: For a trademark or service mark application: As of the application filing date, the applicant had a

bona fide intention, and was entitled, to use the mark in commerce on or in connection with the identified goods/services in the application. For a

collective trademark, collective service mark, or collective membership mark application: As of the application filing date, the applicant had a

bona fide intention, and was entitled, to exercise legitimate control over the use of the mark in commerce by members on or in connection with

the identified goods/services/collective membership organization. For a certification mark application: As of the application filing date, the

applicant had a bona fide intention, and was entitled, to exercise legitimate control over the use of the mark in commerce by authorized users in

connection with the identified goods/services, and the applicant will not engage in the production or marketing of the goods/services to which the

mark is applied, except to advertise or promote recognition of the certification program or of the goods/services that meet the certification

standards of the applicant.

Proposed:Tracked Text Description: Computer software and downloadable mobile applications relating to personalized nutrition for determining a


from a dispensing device containing a personalized dosage of nutraceuticals and other supplements; Computer software and downloadable

mobile applications relating to personalized nutrition for determining a personalized dosage of nutraceuticals and other supplements from a

dispensing device in the nature of electronic automated beverage and nutraceutical dispensing machines and communicating information with the

dispensing devices, enabling users to receive a beverage from the dispensing devices containing a personalized dosage of nutraceuticals and other


nutritional data and information for a beverage and nutraceutical machine to formulate formulating a beverage containing a personalized dosage

of nutraceuticals and other supplements based on the data and information; computer software and downloadable mobile applications for


formulate a beverage containing a personalized dosage of nutraceuticals and other supplements based on the data and information; downloadable

computer software and mobile applications that provide users with for remote operation of personalized nutrition dispensing devices in the nature

of electric automated beverage dispensers and transmission of data between the personalized nutrition dispensing devices and users' mobile

devices and computers using wireless communication for facilitating dispensing a beverage containing a personalized dosage of nutraceuticals

and other supplements; downloadable computer software and mobile applications for remote operation of personalized nutrition dispensing


and users' mobile devices and computers using wireless communication for facilitating dispensing a beverage containing a personalized dosage of





other supplements

Class 009 for Computer software and downloadable mobile applications relating to personalized nutrition for determining a personalized dosage

of nutraceuticals and other supplements from a dispensing device in the nature of electronic automated beverage and nutraceutical dispensing

machines and communicating information with the dispensing devices, enabling users to receive a beverage from the dispensing devices

containing a personalized dosage of nutraceuticals and other supplements; computer software and downloadable mobile applications for enabling

users to receive, access, and provide health, lifestyle and nutritional data and information for a beverage and nutraceutical machine to formulate a

beverage containing a personalized dosage of nutraceuticals and other supplements based on the data and information; downloadable computer

software and mobile applications for remote operation of personalized nutrition dispensing devices in the nature of electric automated beverage

dispensers and transmission of data between the personalized nutrition dispensing devices and users' mobile devices and computers using

wireless communication for facilitating dispensing a beverage containing a personalized dosage of nutraceuticals and other supplements;

electronic automated beverage and nutraceutical dispensing systems, not heated or cooled, comprised of a machine that stores nutraceuticals and

other supplements and dispenses a beverage containing a personalized, pre-determined dosage of nutraceuticals and other supplements at

specified times and has internet connectivity with other devices for collecting, integrating and processing users' health, lifestyle and nutritional

data for enabling the machine to dispense a beverage containing a personalized dosage of nutraceuticals and other supplements










Applicant proposes to amend the following class of goods/services in the application:Current: Class 042 for Providing an online, non-downloadable, Internet-based software application for use in the field of personalized nutrition,

namely, for determining a personalized dosage of nutraceuticals and other supplements and communicating with a dispensing device, enabling

users to receive a beverage containing a personalized dosage of nutraceuticals and other supplements; providing an online, non-downloadable,

Internet-based software application in the field of personalized nutrition for enabling users to access users in the nature of personalized

nutraceuticals and supplements and collective lifestyle, health and nutritional data; providing an online, non-downloadable, Internet-based

software application for accessing and viewing information and data pertaining to personalized nutrition services; software as a service (SAAS)

services featuring software for use in the field of personalized nutrition, namely, for determining a personalized dosage of nutraceuticals and

other supplements, enabling users to receive a beverage containing a personalized dosage of nutraceuticals and other supplements











Proposed:

Tracked Text Description: Providing an online, non-downloadable, Internet-based software application for use in the field of personalized

nutrition, namely, for determining a personalized dosage of nutraceuticals and other supplements and communicating with a dispensing device,

enabling users to receive a beverage containing a personalized dosage of nutraceuticals and other supplements; providing an online, non-

downloadable, internet-based software application for use in the field of personalized nutrition, namely, for determining a personalized dosage of


machines and communicating information with the dispensing devices, enabling users to receive a beverage containing a personalized dosage of

nutraceuticals and other supplements; providing an online, non-downloadable, Internet-based software application in the field of personalized

nutrition for enabling users to access users in the nature of personalized nutraceuticals and supplements and collective lifestyle, health and

nutritional data; providing an online, non-downloadable, internet-based software application in the field of personalized nutrition for enabling

users to access personalized nutraceuticals and supplements from a dispensing device in the nature of electronic automated beverage and

nutraceutical dispensing machines based on collective lifestyle, health and nutritional data; providing an online, non-downloadable, internet-

based software application for accessing and viewing information and data pertaining to personalized nutrition services; software as a service

(SAAS) services featuring software for use in the field of personalized nutrition, namely, for determining a personalized dosage of nutraceuticals

and other supplements, enabling users to receive a beverage containing a personalized dosage of nutraceuticals and other supplements; software

as a service (saas) services featuring software for use in the field of personalized nutrition, namely, for determining a personalized dosage of

nutraceuticals and other supplements to enable users to receive a beverage containing a personalized dosage of nutraceuticals and other

supplements from a dispensing device in the nature of electronic automated beverage and nutraceutical dispensing machines

Class 042 for providing an online, non-downloadable, internet-based software application for use in the field of personalized nutrition, namely,

for determining a personalized dosage of nutraceuticals and other supplements from a dispensing device in the nature of electronic automated

beverage and nutraceutical dispensing machines and communicating information with the dispensing devices, enabling users to receive a

beverage containing a personalized dosage of nutraceuticals and other supplements; providing an online, non-downloadable, internet-based

software application in the field of personalized nutrition for enabling users to access personalized nutraceuticals and supplements from a

dispensing device in the nature of electronic automated beverage and nutraceutical dispensing machines based on collective lifestyle, health and

nutritional data; providing an online, non-downloadable, internet-based software application for accessing and viewing information and data

pertaining to personalized nutrition services; software as a service (saas) services featuring software for use in the field of personalized nutrition,

namely, for determining a personalized dosage of nutraceuticals and other supplements to enable users to receive a beverage containing a

personalized dosage of nutraceuticals and other supplements from a dispensing device in the nature of electronic automated beverage and

nutraceutical dispensing machines










The applicant's current attorney information: Leo V. Gureff. Leo V. Gureff of CANTOR COLBURN LLP, is located at

1800 DIAGONAL ROAD; SUITE 400

ALEXANDRIA, Virginia 22314-2840

US

The docket/reference number is MXF0008TUS.

The phone number is 703-236-4500 x4117.

The email address is [email protected]

The applicants proposed attorney information: Leo V. Gureff. Leo V. Gureff of MUNCY, GEISSLER, OLDS & LOWE, P.C., is a member of the

XX bar, admitted to the bar in XXXX, bar membership no. XXX, is located at

4000 Legato Road; suite 310

Fairfax, Virginia 22033

United States

The docket/reference number is 6618.0007TUS.

The phone number is 703-621-7140 ext 146.

The fax number is 7036217155.

The email address is [email protected]

Leo V. Gureff submitted the following statement: The attorney of record is an active member in good standing of the bar of the highest court of a

U.S. state, the District of Columbia, or any U.S. Commonwealth or territory.

The applicant's current correspondence information: LEO V. GUREFF. LEO V. GUREFF of CANTOR COLBURN LLP, is located at



US

The docket/reference number is MXF0008TUS.

The phone number is 703-236-4500 x4117.

The email address is [email protected]; [email protected]

The applicants proposed correspondence information: Leo V. Gureff. Leo V. Gureff of MUNCY, GEISSLER, OLDS & LOWE, P.C., is located

at



United States

The docket/reference number is 6618.0007TUS.

The phone number is 703-621-7140 ext 146.

The fax number is 7036217155.

The email address is [email protected]; [email protected]

SIGNATURE(S)Request for Reconsideration SignatureSignature: /Leo V. Gureff/ Date: 09/12/2019

Signatory's Name: Leo V. Gureff

Signatory's Position: Attorney of record, DC member

Signatory's Phone Number: 7036217140

The signatory has confirmed that he/she is a U.S.-licensed attorney who is an active member in good standing of the bar of the highest court of a

U.S. state (including the District of Columbia and any U.S. Commonwealth or territory); and he/she is currently the owner's/holder's attorney or

an associate thereof; and to the best of his/her knowledge, if prior to his/her appointment another U.S.-licensed attorney not currently associated

with his/her company/firm previously represented the owner/holder in this matter: the owner/holder has revoked their power of attorney by a

signed revocation or substitute power of attorney with the USPTO; the USPTO has granted that attorney's withdrawal request; the owner/holder

has filed a power of attorney appointing him/her in this matter; or the owner's/holder's appointed U.S.-licensed attorney has filed a power of

attorney appointing him/her as an associate attorney in this matter.

The applicant is not filing a Notice of Appeal in conjunction with this Request for Reconsideration.

Mailing Address: LEO V. GUREFF

CANTOR COLBURN LLP



Mailing Address: Leo V. Gureff

MUNCY, GEISSLER, OLDS & LOWE, P.C.



Serial Number: 88250565

Internet Transmission Date: Thu Sep 12 15:18:06 EDT 2019

TEAS Stamp: USPTO/RFR-XXX.XXX.XXX.XXX-20190912151806

669583-88250565-61015fe6a13c55df81da6bfe

bfef05db53b4bd120bdc166ef14b67ce91f283fb

c-N/A-N/A-20190912151106693208


Subject: U.S. TRADEMARK APPLICATION NO. 88250565 - MIXFIT INTELLIGENT NUTRITION -

MXF0008TUS

Sent: 5/29/2019 2:04:23 PM


Attachments:

UNITED STATES PATENT AND TRADEMARK OFFICE (USPTO)OFFICE ACTION (OFFICIAL LETTER) ABOUT APPLICANT’S TRADEMARK APPLICATION

U.S. APPLICATION

SERIAL NO. 88250565

MARK: MIXFIT

INTELLIGENT

NUTRITION

*88250565*

CORRESPONDENT

ADDRESS:

LEO V. GUREFF

CANTOR

COLBURN LLP

1800 DIAGONAL

ROAD; SUITE 400

ALEXANDRIA, VA

22314-2840

CLICK HERE TO RESPOND TO THIS

LETTER:

http://www.uspto.gov/trademarks/teas/response_forms.jsp

VIEW YOUR APPLICATION FILE

APPLICANT: Mixfit

Inc.

CORRESPONDENT’S

REFERENCE/DOCKET

NO:

MXF0008TUS

CORRESPONDENT E-

MAIL ADDRESS:

tm-

[email protected]

OFFICE ACTION

STRICT DEADLINE TO RESPOND TO THIS LETTERTO AVOID ABANDONMENT OF APPLICANT’S TRADEMARK APPLICATION, THE USPTO MUST RECEIVE APPLICANT’S

COMPLETE RESPONSE TO THIS LETTER WITHIN 6 MONTHS OF THE ISSUE/MAILING DATE BELOW. A RESPONSE

TRANSMITTED THROUGH THE TRADEMARK ELECTRONIC APPLICATION SYSTEM (TEAS) MUST BE RECEIVED BEFORE

MIDNIGHT EASTERN TIME OF THE LAST DAY OF THE RESPONSE PERIOD.

ISSUE/MAILING DATE: 5/29/2019

THIS IS A FINAL ACTION.

This Office Action is in response to applicant’s communication filed April 11, 2019.

The trademark examining attorney notes that the following requirement(s) have been satisfied: Disclaimer. See TMEP §§713.02, 714.04.

In addition, the following refusal(s) have also been obviated: Prior-Filed Application. See TMEP §§713.02, 714.04.



http://tsdr.uspto.gov/#caseNumber=88250565&caseType=SERIAL_NO&searchType=documentSearch

For the reasons discussed below, the following refusal(s) and/or requirement(s) in the Office Action that issued on March 25, 2019, are madeFINAL.

SUMMARY OF ISSUES:

Identification of Goods and Services – FINAL

IDENTIFICATION OF GOODS AND SERVICES – FINAL

Some of the identifications for software in International Classes 9 and 42 are indefinite and must be clarified by amending to specify the purpose

or function of the software. See 37 C.F.R. §2.32(a)(6); TMEP §1402.03(d). If the software is content- or field-specific, applicant must also

specify its content or field of use. See TMEP §1402.03(d). The USPTO requires such specificity in identifying computer software in order for a

trademark examining attorney to examine the application properly and make appropriate decisions concerning possible conflicts between the

applicant’s mark and other marks. See In re N.A.D. Inc., 57 USPQ2d 1872, 1874 (TTAB 2000); TMEP §1402.03(d).

Applicant should note that any wording in bold, in italics, underlined, and/or in ALL CAPS below offers guidance and/or shows changes being

proposed for the identification of goods and/or services. If there is wording in the applicant’s version of the identification of goods and/or

services which should be removed, it will be shown with a line through it such as this: strikethrough. When making its amendments, applicant

should enter them in standard font, not in bold, in italics, underlined, and/or in ALL CAPS.

Applicant may adopt the following identification of goods and services, if accurate:

International Class 9: Computer software and downloadable mobile applications relating to personalized nutrition for determining a

personalized dosage of nutraceuticals and other supplements FROM A DISPENSING DEVICE IN THE NATURE OF {please specify devices, e.g., electric automated beverage dispensers} and communicating INFORMATION

with a THE dispensing deviceS, enabling users to receive a beverage from a THE dispensing deviceS containing a personalized dosage

of nutraceuticals and other supplements; computer software and downloadable mobile applications for enabling users to receive, access,

and provide health, lifestyle and nutritional data and information for a beverage and nutraceutical machine to formulate formulating a

beverage containing a personalized dosage of nutraceuticals and other supplements based on the data and information; downloadable

computer software and mobile applications that provide users with for remote operation of personalized nutrition dispensing devices in

the nature of electric automated beverage dispensers and transmission of data between the personalized nutrition dispensing devices and

users’ mobile devices and computers using wireless communication for facilitating dispensing a beverage containing a personalized

dosage of nutraceuticals and other supplements; electronic automated beverage and nutraceutical dispensing systems, not heated or


determined dosage of nutraceuticals and other supplements at specified times and has internet connectivity with other devices for

collecting, integrating and processing users’ health, lifestyle and nutritional data for enabling the machine to dispense a beverage

containing a personalized dosage of nutraceuticals and other supplements

International Class 42: Providing an online, non-downloadable, Internet-based software application for use in the field of personalized

nutrition, namely, for determining a personalized dosage of nutraceuticals and other supplements FROM A DISPENSING DEVICE INTHE NATURE OF {please specify devices, e.g., electric automated beverage dispensers} and

communicating INFORMATION with a THE dispensing deviceS, enabling users to receive a beverage containing a personalized

dosage of nutraceuticals and other supplements; providing an online, non-downloadable, Internet-based software application in the field

of personalized nutrition for enabling users to access users in the nature of personalized nutraceuticals and supplements FROM {please specify function of software} and collective lifestyle, health and nutritional data; providing an online,

non-downloadable, Internet-based software application for accessing and viewing information and data pertaining to personalized

nutrition services; software as a service (SAAS) services featuring software for use in the field of personalized nutrition, namely, for

determining a personalized dosage of nutraceuticals and other supplements TO ENABLE enabling users to receive a beverage containing

a personalized dosage of nutraceuticals and other supplements FROM {please specify function of software}

See TMEP §1402.01.

An applicant may only amend an identification to clarify or limit the goods and services, but not to add to or broaden the scope of the goods and

services. 37 C.F.R. §2.71(a); see TMEP §§1402.06 et seq., 1402.07.


Acceptable Identification of Goods and Services Manual at http://tess2.uspto.gov/netahtml/tidm.html. See TMEP §1402.04.

PARTIAL ABANDONMENT ADVISORY

•

http://tess2.uspto.gov/netahtml/tidm.html

If applicant does not respond to this Office action within the six-month period for response, the following goods and services will be deleted from

the application: “ Computer software and downloadable mobile applications relating to personalized nutrition for determining a personalized

dosage of nutraceuticals and other supplements and communicating with a dispensing device, enabling users to receive a beverage from a

dispensing device containing a personalized dosage of nutraceuticals and other supplements; computer software and downloadable mobile


nutraceutical machine to formulate formulating a beverage containing a personalized dosage of nutraceuticals and other supplements based on the

data and information; downloadable computer software and mobile applications that provide users with for remote operation of personalized

nutrition dispensing devices in the nature of electric automated beverage dispensers and transmission of data between the personalized nutrition

dispensing devices and users' mobile devices and computers using wireless communication for facilitating dispensing a beverage containing a

personalized dosage of nutraceuticals and other supplements; electronic automated beverage and nutraceutical dispensing systems, not heated or


determined dosage of nutraceuticals and other supplements at specified times and has internet connectivity with other devices for collecting,

integrating and processing users' health, lifestyle and nutritional data for enabling the machine to dispense a beverage containing a personalized

dosage of nutraceuticals and other supplements” in International Class 9 and the services in International Class 42 .

The application will then proceed with the following goods only: “ electronic automated beverage and nutraceutical dispensing systems, not

heated or cooled, comprised of a machine that stores nutraceuticals and other supplements and dispenses a beverage containing a personalized,

pre-determined dosage of nutraceuticals and other supplements at specified times and has internet connectivity with other devices for collecting,

integrating and processing users’ health, lifestyle and nutritional data for enabling the machine to dispense a beverage containing a personalized

dosage of nutraceuticals and other supplements” in International Class 9 . See 37 C.F.R. §2.65(a)-(a)(1); TMEP §718.02(a).









RESPONSE GUIDELINES

Applicant must respond within six months of the date of issuance of this final Office action or the goods and services to which the final refusal(s)

and/or requirement(s) apply will be deleted from the application by Examiner’s Amendment. 37 C.F.R. §2.65(a); see 15 U.S.C. §1062(b).

The application will then proceed for the remaining goods.

Applicant may respond by providing one or both of the following:

(1) a response filed using the Trademark Electronic Application System (TEAS) that fully satisfies all outstanding requirements

and/or resolves all outstanding refusals; and/or

(2) an appeal to the Trademark Trial and Appeal Board filed using the Electronic System for Trademark Trials and Appeals (ESTTA)

with the required filing fee of $200 per class.

37 C.F.R. §2.63(b)(1)-(2); TMEP §714.04; see 37 C.F.R. §2.6(a)(18); TBMP ch. 1200.

In certain rare circumstances, an applicant may respond by filing a petition to the Director pursuant to 37 C.F.R. §2.63(b)(2) to review procedural

issues. TMEP §714.04; see 37 C.F.R. §2.146(b); TBMP §1201.05; TMEP §1704 (explaining petitionable matters). There is a fee required for

filing a petition. 37 C.F.R. §2.6(a)(15).

Please call or email the assigned trademark examining attorney with questions about this Office action. Although the trademark examining

attorney cannot provide legal advice or statements about applicant’s rights, the trademark examining attorney can provide applicant with

additional explanation about the refusal(s) and/or requirement(s) in this Office action. See TMEP §§705.02, 709.06. Although the USPTO does

not accept emails as responses to Office actions, emails can be used for informal communications and will be included in the application record.

See 37 C.F.R. §§2.62(c), 2.191; TMEP §§304.01-.02, 709.04-.05.

http://teas.uspto.gov/office/rfr/

http://estta.uspto.gov/

http://teas.uspto.gov/poa/

/Lauren E. Burke/

Examining Attorney

Law Office 106

(571) 272-2763

[email protected]

TO RESPOND TO THIS LETTER: Go to http://www.uspto.gov/trademarks/teas/response_forms.jsp. Please wait 48-72 hours from the

issue/mailing date before using the Trademark Electronic Application System (TEAS), to allow for necessary system updates of the application.

For technical assistance with online forms, e-mail [email protected]. For questions about the Office action itself, please contact the assigned

trademark examining attorney. E-mail communications will not be accepted as responses to Office actions; therefore, do not respond tothis Office action by e-mail.

All informal e-mail communications relevant to this application will be placed in the official application record.

WHO MUST SIGN THE RESPONSE: It must be personally signed by an individual applicant or someone with legal authority to bind an

applicant (i.e., a corporate officer, a general partner, all joint applicants). If an applicant is represented by an attorney, the attorney must sign the

response.

PERIODICALLY CHECK THE STATUS OF THE APPLICATION: To ensure that applicant does not miss crucial deadlines or official

notices, check the status of the application every three to four months using the Trademark Status and Document Retrieval (TSDR) system at

http://tsdr.uspto.gov/. Please keep a copy of the TSDR status screen. If the status shows no change for more than six months, contact the

Trademark Assistance Center by e-mail at [email protected] or call 1-800-786-9199. For more information on checking

status, see http://www.uspto.gov/trademarks/process/status/.

TO UPDATE CORRESPONDENCE/E-MAIL ADDRESS: Use the TEAS form at http://www.uspto.gov/trademarks/teas/correspondence.jsp.





http://www.uspto.gov/trademarks/process/status/

http://www.uspto.gov/trademarks/teas/correspondence.jsp



MXF0008TUS

Sent: 5/29/2019 2:04:25 PM


Attachments:


IMPORTANT NOTICE REGARDING YOUR

U.S. TRADEMARK APPLICATION

USPTO OFFICE ACTION (OFFICIAL LETTER) HAS ISSUED

ON 5/29/2019 FOR U.S. APPLICATION SERIAL NO. 88250565

Please follow the instructions below:

(1) TO READ THE LETTER: Click on this link or go to http://tsdr.uspto.gov, enter the U.S. application serial number, and click on

“Documents.”

The Office action may not be immediately viewable, to allow for necessary system updates of the application, but will be available within 24

hours of this e-mail notification.

(2) TIMELY RESPONSE IS REQUIRED: Please carefully review the Office action to determine (1) how to respond, and (2) the applicable

response time period. Your response deadline will be calculated from 5/29/2019 (or sooner if specified in the Office action). A response

transmitted through the Trademark Electronic Application System (TEAS) must be received before midnight Eastern Time of the last day of the

response period. For information regarding response time periods, see http://www.uspto.gov/trademarks/process/status/responsetime.jsp.

Do NOT hit “Reply” to this e-mail notification, or otherwise e-mail your response because the USPTO does NOT accept e-mails as

responses to Office actions. Instead, the USPTO recommends that you respond online using the TEAS response form located at

http://www.uspto.gov/trademarks/teas/response_forms.jsp.

(3) QUESTIONS: For questions about the contents of the Office action itself, please contact the assigned trademark examining attorney. For

technical assistance in accessing or viewing the Office action in the Trademark Status and Document Retrieval (TSDR) system, please e-mail

[email protected].

WARNING

Failure to file the required response by the applicable response deadline will result in the ABANDONMENT of your application. For

more information regarding abandonment, see http://www.uspto.gov/trademarks/basics/abandon.jsp.

PRIVATE COMPANY SOLICITATIONS REGARDING YOUR APPLICATION: Private companies not associated with the USPTO are

using information provided in trademark applications to mail or e-mail trademark-related solicitations. These companies often use names that

closely resemble the USPTO and their solicitations may look like an official government document. Many solicitations require that you pay

“fees.”

Please carefully review all correspondence you receive regarding this application to make sure that you are responding to an official document

from the USPTO rather than a private company solicitation. All official USPTO correspondence will be mailed only from the “United States

Patent and Trademark Office” in Alexandria, VA; or sent by e-mail from the domain “@uspto.gov.” For more information on how to handle

private company solicitations, see http://www.uspto.gov/trademarks/solicitation_warnings.jsp.




http://www.uspto.gov/trademarks/process/status/responsetime.jsp



http://www.uspto.gov/trademarks/basics/abandon.jsp

http://www.uspto.gov/trademarks/solicitation_warnings.jsp


OVERVIEW





TM ATTORNEY BURKE, LAUREN ELAN L.O. ASSIGNED 106

PUB INFORMATION

RUN DATE 04/13/2019

PUB DATE N/A

STATUS 661-RESPONSE AFTER NON-FINAL-ACTION-ENTERED








DATE AMEND REG N/A

FILING BASIS


1 (a) NO 1 (a) NO 1 (a) NO

1 (b) YES 1 (b) YES 1 (b) NO



66A NO 66A NO


MARK DATA







NAME Mixfit Inc.




GOODS AND SERVICES


DESCRIPTION TEXT Computer software and downloadable mobile applications relating to personalizednutrition for determining a personalized dosage of nutraceuticals and othersupplements and communicating with a dispensing device, enabling users to receivea beverage from a dispensing device containing a personalized dosage ofnutraceuticals and other supplements; computer software and downloadable mobileapplications for enabling users to receive, access, and provide health, lifestyle andnutritional data and information for a beverage and nutraceutical machine toformulate formulating a beverage containing a personalized dosage of nutraceuticalsand other supplements based on the data and information; downloadable computersoftware and mobile applications that provide users with for remote operation ofpersonalized nutrition dispensing devices in the nature of electric automatedbeverage dispensers and transmission of data between the personalized nutritiondispensing devices and users' mobile devices and computers using wirelesscommunication for facilitating dispensing a beverage containing a personalizeddosage of nutraceuticals and other supplements; electronic automated beverage andnutraceutical dispensing systems, not heated or cooled, comprised of a machine thatstores nutraceuticals and other supplements and dispenses a beverage containing apersonalized, pre-determined dosage of nutraceuticals and other supplements atspecified times and has internet connectivity with other devices for collecting,integrating and processing users' health, lifestyle and nutritional data for enabling themachine to dispense a beverage containing a personalized dosage of nutraceuticalsand other supplements


DESCRIPTION TEXT Providing an online, non-downloadable, Internet-based software application for usein the field of personalized nutrition, namely, for determining a personalized dosageof nutraceuticals and other supplements and communicating with a dispensingdevice, enabling users to receive a beverage containing a personalized dosage ofnutraceuticals and other supplements; providing an online, non-downloadable,Internet-based software application in the field of personalized nutrition for enablingusers to access users in the nature of personalized nutraceuticals and supplementsand collective lifestyle, health and nutritional data; providing an online, non-downloadable, Internet-based software application for accessing and viewinginformation and data pertaining to personalized nutrition services; software as aservice (SAAS) services featuring software for use in the field of personalizednutrition, namely, for determining a personalized dosage of nutraceuticals and othersupplements, enabling users to receive a beverage containing a personalizeddosage of nutraceuticals and other supplements


INTERNATIONALCLASS



INTERNATIONALCLASS







I

PROSECUTION HISTORY













CORRESPONDENCE ADDRESS LEO V. GUREFFCANTOR COLBURN LLP1800 DIAGONAL ROAD; SUITE 400ALEXANDRIA, VA 22314-2840


I


OMB No. 0651-0050 (Exp 09/20/2020)

Response to Office Action


Input Field Entered


LAW OFFICE ASSIGNED LAW OFFICE 106

MARK SECTION

MARK https://tmng-al.uspto.gov/resting2/api/img/88250565/large

LITERAL ELEMENT MIXFIT INTELLIGENT NUTRITION ASSISTANT



MARK STATEMENTThe mark consists of standard characters, without claim to any particular font style,

size or color.

EVIDENCE SECTION

EVIDENCE FILE NAME(S)

ORIGINAL PDF FILE evi_12227902-20190411183545828097_._87906363.pdf

CONVERTED PDF FILE(S)

(1 page)\\TICRS\EXPORT17\IMAGEOUT17\882\505\88250565\xml4\ROA0002.JPG

DESCRIPTION OF EVIDENCE FILE

The Examining attorney noted the prior-filed pending application, U.S. Application

Serial No. 87906363. The applicant submits that the U.S. Application Serial No.

87906363 has been abandoned as of April 4, 2019 (see attached notice of

abandonment) , and therefore the rejection based on prior-filed pending application,

U.S. Application Serial No. 87906363, is moot.



DESCRIPTION

Computer software and downloadable mobile applications relating to personalized nutrition for enabling users to receive a beverage containing

a personalized dosage of nutraceuticals and other supplements; computer software and downloadable mobile applications for enabling users to

receive, access, and provide health, lifestyle and nutritional data and information for formulating a beverage containing a personalized dosage

of nutraceuticals and other supplements; downloadable computer software and mobile applications that provide users with remote operation of

personalized nutrition dispensing devices and transmission of data between personalized nutrition dispensing devices and users' mobile devices

and computers using wireless communication for facilitating dispensing a beverage containing a personalized dosage of nutraceuticals and

other supplements; electronic and nutraceutical dispensing systems comprised of a machine that stores nutraceuticals and other supplements

and dispenses a beverage containing a personalized dosage of nutraceuticals and other supplements at specified times and has internet

connectivity with other devices for collecting, integrating and processing users' health, lifestyle and nutritional data for enabling the machine to

dispense a beverage containing a personalized dosage of nutraceuticals and other supplements





Computer software and downloadable mobile applications relating to personalized nutrition for enabling users to receive a beverage containing

../evi_12227902-20190411183545828097_._87906363.pdf

../ROA0002.JPG

a personalized dosage of nutraceuticals and other supplements; Computer software and downloadable mobile applications relating to

personalized nutrition for determining a personalized dosage of nutraceuticals and other supplements and communicating with a dispensing

device, enabling users to receive a beverage from a dispensing device containing a personalized dosage of nutraceuticals and other


nutritional data and information for formulating a beverage containing a personalized dosage of nutraceuticals and other supplements;

computer software and downloadable mobile applications for enabling users to receive, access, and provide health, lifestyle and nutritional

data and information for a beverage and nutraceutical machine to formulate formulating a beverage containing a personalized dosage of

nutraceuticals and other supplements based on the data and information; downloadable computer software and mobile applications that provide

users with remote operation of personalized nutrition dispensing devices and transmission of data between personalized nutrition dispensing

devices and users' mobile devices and computers using wireless communication for facilitating dispensing a beverage containing a

personalized dosage of nutraceuticals and other supplements; downloadable computer software and mobile applications that provide users with

for remote operation of personalized nutrition dispensing devices in the nature of electric automated beverage dispensers and transmission of

data between the personalized nutrition dispensing devices and users' mobile devices and computers using wireless communication for

facilitating dispensing a beverage containing a personalized¶

dosage of nutraceuticals and other supplements; electronic and nutraceutical dispensing systems comprised of a machine that stores

nutraceuticals and other supplements and dispenses a beverage containing a personalized dosage of nutraceuticals and other supplements at

specified times and has internet connectivity with other devices for collecting, integrating and processing users' health, lifestyle and nutritional

data for enabling the machine to dispense a beverage containing a personalized dosage of nutraceuticals and other supplements; electronic

automated beverage and nutraceutical dispensing systems, not heated or cooled, comprised of a machine that stores nutraceuticals and other

supplements and dispenses a beverage containing¶

a personalized, pre-determined dosage of nutraceuticals and other supplements at specified times and has internet connectivity with other

devices for collecting, integrating and processing users' health, lifestyle and nutritional data for enabling the machine to¶


FINAL DESCRIPTION









of nutraceuticals and other supplements; electronic automated beverage and nutraceutical dispensing systems, not heated or cooled, comprised

of a machine that stores nutraceuticals and other supplements and dispenses a beverage containing a personalized, pre-determined dosage of

nutraceuticals and other supplements at specified times and has internet connectivity with other devices for collecting, integrating and

processing users' health, lifestyle and nutritional data for enabling the machine to dispense a beverage containing a personalized dosage of

nutraceuticals and other supplements




DESCRIPTION

Providing an online, non-downloadable, Internet-based software application for use in the field of personalized nutrition, namely, enabling

users to receive a beverage containing a personalized dosage of nutraceuticals and other supplements; providing an online, non-downloadable,

Internet-based software application in the field of personalized nutrition for enabling users to access users and collective lifestyle, health and

nutritional data; providing an online, non-downloadable, Internet-based software application for accessing and viewing information and data

pertaining to personalized nutrition services; software as a service (SAAS) services featuring software for use in the field of personalized

nutrition, namely, enabling users to receive a beverage containing a personalized dosage of nutraceuticals and other supplements





Providing an online, non-downloadable, Internet-based software application for use in the field of personalized nutrition, namely, enabling

users to receive a beverage containing a personalized dosage of nutraceuticals and other supplements; Providing an online, non-downloadable,

I

I

I

I

Internet-based software application for use in the field of personalized nutrition, namely, for determining a personalized dosage of

nutraceuticals and other supplements and communicating with a dispensing device, enabling users to receive a beverage containing a

personalized dosage of nutraceuticals and other supplements; providing an online, non-downloadable, Internet-based software application in

the field of personalized nutrition for enabling users to access users and collective lifestyle, health and nutritional data; providing an online,

non-downloadable, Internet-based software application in the field of personalized nutrition for enabling users to access users in the nature of

personalized nutraceuticals and supplements and collective lifestyle, health and nutritional data; providing an online, non-downloadable,

Internet-based software application for accessing and viewing information and data pertaining to personalized nutrition services; software as a

service (SAAS) services featuring software for use in the field of personalized nutrition, namely, enabling users to receive a beverage

containing a personalized dosage of nutraceuticals and other supplements; software as a service (SAAS) services featuring software for use in

the field of personalized nutrition, namely, for determining a personalized dosage of nutraceuticals and other supplements, enabling users to

receive a beverage containing a personalized dosage of nutraceuticals and other supplements

FINAL DESCRIPTION




based software application in the field of personalized nutrition for enabling users to access users in the nature of personalized nutraceuticals

and supplements and collective lifestyle, health and nutritional data; providing an online, non-downloadable, Internet-based software

application for accessing and viewing information and data pertaining to personalized nutrition services; software as a service (SAAS) services

featuring software for use in the field of personalized nutrition, namely, for determining a personalized dosage of nutraceuticals and other

supplements, enabling users to receive a beverage containing a personalized dosage of nutraceuticals and other supplements


ADDITIONAL STATEMENTS SECTION

DISCLAIMERNo claim is made to the exclusive right to use INTELLIGENT NUTRITION

ASSISTANT apart from the mark as shown.

SIGNATURE SECTION

RESPONSE SIGNATURE /Leo V. Gureff/


SIGNATORY'S POSITION Attorney of record, DC bar member

SIGNATORY'S PHONE NUMBER 703-236.4500


AUTHORIZED SIGNATORY YES

FILING INFORMATION SECTION

SUBMIT DATE Thu Apr 11 18:41:17 EDT 2019

TEAS STAMP

USPTO/ROA-XX.XXX.XX.X-201

90411184117724088-8825056

5-6202fcd626ea12844213a16

541a8c58b529c16475bd83214

18bc73f3aee9b8e6e-N/A-N/A

-20190411183545828097


OMB No. 0651-0050 (Exp 09/20/2020)

Response to Office Action


Application serial no. 88250565 MIXFIT INTELLIGENT NUTRITION ASSISTANT(Standard Characters, see https://tmng-

al.uspto.gov/resting2/api/img/88250565/large) has been amended as follows:

EVIDENCEEvidence in the nature of The Examining attorney noted the prior-filed pending application, U.S. Application Serial No. 87906363. The applicant

submits that the U.S. Application Serial No. 87906363 has been abandoned as of April 4, 2019 (see attached notice of abandonment) , and

therefore the rejection based on prior-filed pending application, U.S. Application Serial No. 87906363, is moot. has been attached.

Original PDF file:evi_12227902-20190411183545828097_._87906363.pdf

Converted PDF file(s) ( 1 page)

Evidence-1

CLASSIFICATION AND LISTING OF GOODS/SERVICESApplicant proposes to amend the following class of goods/services in the application:Current: Class 009 for Computer software and downloadable mobile applications relating to personalized nutrition for enabling users to receive

a beverage containing a personalized dosage of nutraceuticals and other supplements; computer software and downloadable mobile applications

for enabling users to receive, access, and provide health, lifestyle and nutritional data and information for formulating a beverage containing a

personalized dosage of nutraceuticals and other supplements; downloadable computer software and mobile applications that provide users with

remote operation of personalized nutrition dispensing devices and transmission of data between personalized nutrition dispensing devices and

users' mobile devices and computers using wireless communication for facilitating dispensing a beverage containing a personalized dosage of

nutraceuticals and other supplements; electronic and nutraceutical dispensing systems comprised of a machine that stores nutraceuticals and other

supplements and dispenses a beverage containing a personalized dosage of nutraceuticals and other supplements at specified times and has

internet connectivity with other devices for collecting, integrating and processing users' health, lifestyle and nutritional data for enabling the

machine to dispense a beverage containing a personalized dosage of nutraceuticals and other supplements











Proposed:Tracked Text Description: Computer software and downloadable mobile applications relating to personalized nutrition for enabling users to

receive a beverage containing a personalized dosage of nutraceuticals and other supplements; Computer software and downloadable mobile

applications relating to personalized nutrition for determining a personalized dosage of nutraceuticals and other supplements and communicating

with a dispensing device, enabling users to receive a beverage from a dispensing device containing a personalized dosage of nutraceuticals and

other supplements; computer software and downloadable mobile applications for enabling users to receive, access, and provide health, lifestyle

and nutritional data and information for formulating a beverage containing a personalized dosage of nutraceuticals and other supplements;

computer software and downloadable mobile applications for enabling users to receive, access, and provide health, lifestyle and nutritional data

and information for a beverage and nutraceutical machine to formulate formulating a beverage containing a personalized dosage of nutraceuticals

and other supplements based on the data and information; downloadable computer software and mobile applications that provide users with

remote operation of personalized nutrition dispensing devices and transmission of data between personalized nutrition dispensing devices and

users' mobile devices and computers using wireless communication for facilitating dispensing a beverage containing a personalized dosage of

nutraceuticals and other supplements; downloadable computer software and mobile applications that provide users with for remote operation of

personalized nutrition dispensing devices in the nature of electric automated beverage dispensers and transmission of data between the

personalized nutrition dispensing devices and users' mobile devices and computers using wireless communication for facilitating dispensing a

beverage containing a personalized¶

dosage of nutraceuticals and other supplements; electronic and nutraceutical dispensing systems comprised of a machine that stores nutraceuticals

and other supplements and dispenses a beverage containing a personalized dosage of nutraceuticals and other supplements at specified times and

has internet connectivity with other devices for collecting, integrating and processing users' health, lifestyle and nutritional data for enabling the

machine to dispense a beverage containing a personalized dosage of nutraceuticals and other supplements; electronic automated beverage and

nutraceutical dispensing systems, not heated or cooled, comprised of a machine that stores nutraceuticals and other supplements and dispenses a

beverage containing¶

a personalized, pre-determined dosage of nutraceuticals and other supplements at specified times and has internet connectivity with other devices

for collecting, integrating and processing users' health, lifestyle and nutritional data for enabling the machine to¶


../evi_12227902-20190411183545828097_._87906363.pdf

../ROA0002.JPG

Class 009 for Computer software and downloadable mobile applications relating to personalized nutrition for determining a personalized dosage

of nutraceuticals and other supplements and communicating with a dispensing device, enabling users to receive a beverage from a dispensing






and users' mobile devices and computers using wireless communication for facilitating dispensing a beverage containing a personalized dosage of





other supplements










Applicant proposes to amend the following class of goods/services in the application:Current: Class 042 for Providing an online, non-downloadable, Internet-based software application for use in the field of personalized nutrition,

namely, enabling users to receive a beverage containing a personalized dosage of nutraceuticals and other supplements; providing an online, non-

downloadable, Internet-based software application in the field of personalized nutrition for enabling users to access users and collective lifestyle,

health and nutritional data; providing an online, non-downloadable, Internet-based software application for accessing and viewing information

and data pertaining to personalized nutrition services; software as a service (SAAS) services featuring software for use in the field of

personalized nutrition, namely, enabling users to receive a beverage containing a personalized dosage of nutraceuticals and other supplements











Proposed:Tracked Text Description: Providing an online, non-downloadable, Internet-based software application for use in the field of personalized

nutrition, namely, enabling users to receive a beverage containing a personalized dosage of nutraceuticals and other supplements; Providing an

online, non-downloadable, Internet-based software application for use in the field of personalized nutrition, namely, for determining a


containing a personalized dosage of nutraceuticals and other supplements; providing an online, non-downloadable, Internet-based software

application in the field of personalized nutrition for enabling users to access users and collective lifestyle, health and nutritional data; providing

an online, non-downloadable, Internet-based software application in the field of personalized nutrition for enabling users to access users in the

nature of personalized nutraceuticals and supplements and collective lifestyle, health and nutritional data; providing an online, non-

downloadable, Internet-based software application for accessing and viewing information and data pertaining to personalized nutrition services;

software as a service (SAAS) services featuring software for use in the field of personalized nutrition, namely, enabling users to receive a

beverage containing a personalized dosage of nutraceuticals and other supplements; software as a service (SAAS) services featuring software for

use in the field of personalized nutrition, namely, for determining a personalized dosage of nutraceuticals and other supplements, enabling users

to receive a beverage containing a personalized dosage of nutraceuticals and other supplements

Class 042 for Providing an online, non-downloadable, Internet-based software application for use in the field of personalized nutrition, namely,

for determining a personalized dosage of nutraceuticals and other supplements and communicating with a dispensing device, enabling users to


based software application in the field of personalized nutrition for enabling users to access users in the nature of personalized nutraceuticals and

supplements and collective lifestyle, health and nutritional data; providing an online, non-downloadable, Internet-based software application for

accessing and viewing information and data pertaining to personalized nutrition services; software as a service (SAAS) services featuring

software for use in the field of personalized nutrition, namely, for determining a personalized dosage of nutraceuticals and other supplements,

enabling users to receive a beverage containing a personalized dosage of nutraceuticals and other supplements










ADDITIONAL STATEMENTS DisclaimerNo claim is made to the exclusive right to use INTELLIGENT NUTRITION ASSISTANT apart from the mark as shown.

SIGNATURE(S)Response SignatureSignature: /Leo V. Gureff/ Date: 04/11/2019


Signatory's Position: Attorney of record, DC bar member

Signatory's Phone Number: 703-236.4500

The signatory has confirmed that he/she is an attorney who is a member in good standing of the bar of the highest court of a U.S. state, which

includes the District of Columbia, Puerto Rico, and other federal territories and possessions; and he/she is currently the owner's/holder's attorney

or an associate thereof; and to the best of his/her knowledge, if prior to his/her appointment another U.S. attorney or a Canadian attorney/agent

not currently associated with his/her company/firm previously represented the owner/holder in this matter: (1) the owner/holder has filed or is

concurrently filing a signed revocation of or substitute power of attorney with the USPTO; (2) the USPTO has granted the request of the prior

representative to withdraw; (3) the owner/holder has filed a power of attorney appointing him/her in this matter; or (4) the owner's/holder's

appointed U.S. attorney or Canadian attorney/agent has filed a power of attorney appointing him/her as an associate attorney in this matter.


Internet Transmission Date: Thu Apr 11 18:41:17 EDT 2019

TEAS Stamp: USPTO/ROA-XX.XXX.XX.X-201904111841177240

88-88250565-6202fcd626ea12844213a16541a8

c58b529c16475bd8321418bc73f3aee9b8e6e-N/

A-N/A-20190411183545828097

From:

Sent:

To:

[email protected]

Thursday, April 4, 2019 06:07 PM

[email protected]

Cc:

Subject:

[email protected] ; richard [email protected] ; [email protected] ; [email protected]

Official USPTO Notification: U.S. Trademark SN 87906363 -- Docket/Reference No. 12614902US01

OFFICIAL USPTO NOTICE OF ABANDONMENT

TRADEMARK APPLICATION ABANDONED FAILURE TO TIMELY RESPOND TO OFFICE ACTION

U.S. Application Serial No. 87906363

Mark: INTELLIGENT NUTRITION ASSISTANT

Owner: SAVOR HEALTH, LLC

Docket/Reference No.12614902US01

Issue Date: April 04, 2019

The application above is abandoned because we did not receive a response to the previous Office action within the six-month response period.

If you did not receive the Office action or if the delay in filing your response was unintentional , you can file a Petition to Revive Abandoned Application - Failure to Respond Timely to Office Action form. You must file the petition within two months of the issue date of this notice. The petition must inc lude the follow ing :

(1) A signed statement by someone with firsthand knowledge of the facts, stating that the delay in responding by the due date was unintentional;

(2) A complete response to the Office action if the Office action was received, or, if the Office action was not received, a clear statement of this fact; and

(3) A petition fee.

If you have proof that the application was abandoned due to USPTO error, you can file a Request for Reinstatement of the application and include the proof (such as a copy of

an email confirmation issued by the US PTO that includes the date of receipt and a summary of the on line submission). You must file the request within two months of the

issue date of this notice. There is no fee for this request.

For more information on filing a petition, see our webpage on petitions.

For questions about this notice, filing a petition, or filing a request for reinstatement, contact the Trademark Assistance Center at 1-800-786-9199 (select option 1) or at [email protected].

View this notice and other documents for this application on line in the Trademark Status and Document Retrieval (TSDR) database.



MXF0008TUS

Sent: 3/25/2019 12:20:20 PM


Attachments: Attachment - 1

Attachment - 2

Attachment - 3

Attachment - 4

Attachment - 5

UNITED STATES PATENT AND TRADEMARK OFFICE (USPTO)OFFICE ACTION (OFFICIAL LETTER) ABOUT APPLICANT’S TRADEMARK APPLICATION

U.S. APPLICATION

SERIAL NO. 88250565

MARK: MIXFIT

INTELLIGENT

NUTRITION

*88250565*

CORRESPONDENT

ADDRESS:

LEO V. GUREFF

CANTOR

COLBURN LLP

1800 DIAGONAL

ROAD; SUITE 400

ALEXANDRIA, VA

22314-2840

CLICK HERE TO RESPOND TO THIS

LETTER:


VIEW YOUR APPLICATION FILE

APPLICANT: Mixfit

Inc.

CORRESPONDENT’S

REFERENCE/DOCKET

NO:

MXF0008TUS

CORRESPONDENT E-

MAIL ADDRESS:

tm-

[email protected]

OFFICE ACTION

STRICT DEADLINE TO RESPOND TO THIS LETTERTO AVOID ABANDONMENT OF APPLICANT’S TRADEMARK APPLICATION, THE USPTO MUST RECEIVE APPLICANT’S

COMPLETE RESPONSE TO THIS LETTER WITHIN 6 MONTHS OF THE ISSUE/MAILING DATE BELOW. A RESPONSE

TRANSMITTED THROUGH THE TRADEMARK ELECTRONIC APPLICATION SYSTEM (TEAS) MUST BE RECEIVED BEFORE

MIDNIGHT EASTERN TIME OF THE LAST DAY OF THE RESPONSE PERIOD.

ISSUE/MAILING DATE: 3/25/2019

The referenced application has been reviewed by the assigned trademark examining attorney. Applicant must respond timely and completely to

the issue(s) below. 15 U.S.C. §1062(b); 37 C.F.R. §§2.62(a), 2.65(a); TMEP §§711, 718.03.


../OOA0002.JPG

../OOA0003.JPG

../OOA0004.JPG

../OOA0005.jpg

../OOA0006.jpg


http://tsdr.uspto.gov/#caseNumber=88250565&caseType=SERIAL_NO&searchType=documentSearch

SUMMARY OF ISSUES:

Prior-Filed Application

Identification of Goods and Services

Multiple-Class Application Requirements

Disclaimer Required

SEARCH OF OFFICE’S DATABASE OF MARKS

The trademark examining attorney has searched the USPTO’s database of registered and pending marks and has found no similar registered

marks that would bar registration under Trademark Act Section 2(d). TMEP §704.02; see 15 U.S.C. §1052(d). However, a mark in a prior-filed

pending application may present a bar to registration of applicant’s mark.

PRIOR-FILED APPLICATION

The filing date of pending U.S. Application Serial No. 87906363 precedes applicant’s filing date. See attached referenced application. If the

mark in the referenced application registers, applicant’s mark may be refused registration under Trademark Act Section 2(d) because of a

likelihood of confusion between the two marks. See 15 U.S.C. §1052(d); 37 C.F.R. §2.83; TMEP §§1208 et seq. Therefore, upon receipt of

applicant’s response to this Office action, action on this application may be suspended pending final disposition of the earlier-filed referenced

application.

In response to this Office action, applicant may present arguments in support of registration by addressing the issue of the potential conflict

between applicant’s mark and the mark in the referenced application. Applicant’s election not to submit arguments at this time in no way limits

applicant’s right to address this issue later if a refusal under Section 2(d) issues.

IDENTIFICATION AND CLASSIFICATION OF GOODS AND SERVICES

Some of the identifications for software are indefinite and must be clarified by amending to specify the purpose or function of the software. See

37 C.F.R. §2.32(a)(6); TMEP §1402.03(d). If the software is content- or field-specific, applicant must also specify its content or field of use. See

TMEP §1402.03(d). The USPTO requires such specificity in identifying computer software in order for a trademark examining attorney to

examine the application properly and make appropriate decisions concerning possible conflicts between the applicant’s mark and other marks.

See In re N.A.D. Inc., 57 USPQ2d 1872, 1874 (TTAB 2000); TMEP §1402.03(d).

The wording “electronic and nutraceutical dispensing systems comprised of a machine that stores nutraceuticals and other supplements and

dispenses a beverage containing a personalized dosage of nutraceuticals and other supplements at specified times and has internet connectivity

with other devices for collecting, integrating and processing users' health, lifestyle and nutritional data for enabling the machine to dispense a

beverage containing a personalized dosage of nutraceuticals and other supplements” in the identification of goods for International Class 9 must

be clarified because it is too broad and could include goods in other international classes. See 37 C.F.R. §2.32(a)(6); TMEP §§1402.01, 1402.03.

Applicant should note that any wording in bold, in italics, underlined, and/or in ALL CAPS below offers guidance and/or shows changes being

proposed for the identification of goods and/or services. If there is wording in the applicant’s version of the identification of goods and/or

services which should be removed, it will be shown with a line through it such as this: strikethrough. When making its amendments, applicant

should enter them in standard font, not in bold, in italics, underlined, and/or in ALL CAPS.

Applicant may adopt the following identification of goods and services, if accurate:

International Class 9: Computer software and downloadable mobile applications relating to personalized nutrition for

{please specify function of software}, enabling users to receive a beverage FROM A MACHINE containing a

personalized dosage of nutraceuticals and other supplements; computer software and downloadable mobile applications for enabling users

to receive, access, and provide health, lifestyle and nutritional data and information for A BEVERAGE AND NUTRACEUTICALMACHINE TO FORMULATE formulating a beverage containing a personalized dosage of nutraceuticals and other supplements

BASED ON THE DATA AND INFORMATION; downloadable computer software and mobile applications that provide users with

FOR remote operation of personalized nutrition dispensing devices IN THE NATURE OF {please specify

devices, e.g., electric automated beverage dispensers} and transmission of data between THE personalized nutrition dispensing devices

and users’ mobile devices and computers using wireless communication for facilitating dispensing a beverage containing a personalized

dosage of nutraceuticals and other supplements; electronic AUTOMATED BEVERAGE and nutraceutical dispensing systems, NOTHEATED OR COOLED, comprised of a machine that stores nutraceuticals and other supplements and dispenses a beverage containing

a personalized, PRE-DETERMINED dosage of nutraceuticals and other supplements at specified times and has internet connectivity

• • • •

with other devices for collecting, integrating and processing users’ health, lifestyle and nutritional data for enabling the machine to


International Class 11: ELECTRONIC AND NUTRACEUTICAL DISPENSING SYSTEMS COMPRISED OF A

{please specify goods, e.g., refrigerated, temperature-controlled} BEVERAGE DISPENSING MACHINE

THAT STORES NUTRACEUTICALS AND OTHER SUPPLEMENTS AND DISPENSES A BEVERAGE CONTAINING APERSONALIZED DOSAGE OF NUTRACEUTICALS AND OTHER SUPPLEMENTS AT SPECIFIED TIMES AND HASINTERNET CONNECTIVITY WITH OTHER DEVICES FOR COLLECTING, INTEGRATING AND PROCESSINGUSERS’ HEALTH, LIFESTYLE AND NUTRITIONAL DATA FOR ENABLING THE MACHINE TO DISPENSE ABEVERAGE CONTAINING A PERSONALIZED DOSAGE OF NUTRACEUTICALS AND OTHER SUPPLEMENTS


nutrition, namely, FOR {please specify function of software}, enabling users to receive a beverage containing a

personalized dosage of nutraceuticals and other supplements; providing an online, non-downloadable, Internet-based software application

in the field of personalized nutrition for enabling users to access users IN THE NATURE OF {please specify

function of software} and collective lifestyle, health and nutritional data; providing an online, non-downloadable, Internet-based software

application for accessing and viewing information and data pertaining to personalized nutrition services; software as a service (SAAS)

services featuring software for use in the field of personalized nutrition, namely, FOR {please specify function

of software}, enabling users to receive a beverage containing a personalized dosage of nutraceuticals and other supplements

See TMEP §1402.01.

An applicant may only amend an identification to clarify or limit the goods and services, but not to add to or broaden the scope of the goods and

services. 37 C.F.R. §2.71(a); see TMEP §§1402.06 et seq., 1402.07.


Acceptable Identification of Goods and Services Manual at http://tess2.uspto.gov/netahtml/tidm.html. See TMEP §1402.04.

MULTIPLE-CLASS APPLICATION REQUIREMENTS

The application identifies goods and services in more than one international class; therefore, applicant must satisfy all the requirements below for

each international class based on Trademark Act Section 1(b):

(1) List the goods and/or services by their international class number in consecutive numerical order, starting with the lowest

numbered class.

(2) Submit a filing fee for each international class not covered by the fee(s) already paid (view the USPTO’s current fee schedule ).

The application identifies goods and services that are classified in at least 3 classes; however, applicant submitted fees sufficient for

only 2 classes. Applicant must either submit the filing fees for the classes not covered by the submitted fees or restrict the application

to the number of classes covered by the fees already paid.

See 15 U.S.C. §§1051(b), 1112, 1126(e); 37 C.F.R. §§2.32(a)(6)-(7), 2.34(a)(2)-(3), 2.86(a); TMEP §§1403.01, 1403.02(c).

See an overview of the requirements for a Section 1(b) multiple-class application and how to satisfy the requirements online using the Trademark

Electronic Application System (TEAS) form.

DISCLAIMER REQUIRED

Applicant must provide a disclaimer of the unregistrable part(s) of the applied-for mark even though the mark as a whole appears to be

registrable. See 15 U.S.C. §1056(a); TMEP §§1213, 1213.03(a). A disclaimer of an unregistrable part of a mark will not affect the mark’s

appearance. See Schwarzkopf v. John H. Breck, Inc., 340 F.2d 978, 979-80, 144 USPQ 433, 433 (C.C.P.A. 1965).

In this case, applicant must disclaim the wording “INTELLIGENT NUTRITION ASSISTANT” in the mark because it is not inherently

distinctive. These unregistrable term(s) at best are merely descriptive of an ingredient, quality, characteristic, function, feature, purpose, or use of

applicant’s goods and services. See 15 U.S.C. §1052(e)(1); DuoProSS Meditech Corp. v. Inviro Med. Devices, Ltd., 695 F.3d 1247, 1251, 103

USPQ2d 1753, 1755 (Fed. Cir. 2012); TMEP §§1213, 1213.03(a).

The attached dictionary evidence shows that “INTELLIGENT” means “guided or controlled by a computer” ( https://www.merriam-

webster.com/dictionary/intelligent) and “ASSISTANT” means “a device or product that provides assistance” ( https://www.merriam-

http://tess2.uspto.gov/netahtml/tidm.html

https://www.uspto.gov/trademark/laws-regulations/how-satisfy-requirements-multiple-class-application-or-multiple-class#list

https://www.uspto.gov/trademark/laws-regulations/how-satisfy-requirements-multiple-class-application-or-multiple-class#fees

https://www.uspto.gov/trademark/trademark-fee-information

https://www.uspto.gov/trademark/laws-regulations/how-satisfy-requirements-multiple-class-application-or-multiple-class

https://www.merriam-webster.com/dictionary/intelligent


https://www.merriam-webster.com/dictionary/assistant

webster.com/dictionary/assistant). Additionally, the word “NUTRITION” appears in the identification of goods and services. Thus, the

wording merely describes a characteristic and function of applicant’s goods and services.

Applicant may respond to this issue by submitting a disclaimer in the following format:

No claim is made to the exclusive right to use “INTELLIGENT NUTRITION ASSISTANT” apart from the mark as shown.

For an overview of disclaimers and instructions on how to satisfy this issue using the Trademark Electronic Application System (TEAS), see the

Disclaimer webpage.









RESPONSE GUIDELINES

Response guidelines. For this application to proceed, applicant must explicitly address each refusal and/or requirement in this Office action. For

a refusal, applicant may provide written arguments and evidence against the refusal, and may have other response options if specified above. For

a requirement, applicant should set forth the changes or statements. Please see “ Responding to Office Actions” and the informational video

“Response to Office Action ” for more information and tips on responding.

Please call or email the assigned trademark examining attorney with questions about this Office action. Although the trademark examining

attorney cannot provide legal advice or statements about applicant’s rights, the trademark examining attorney can provide applicant with

additional explanation about the refusal(s) and/or requirement(s) in this Office action. See TMEP §§705.02, 709.06. Although the USPTO does

not accept emails as responses to Office actions, emails can be used for informal communications and will be included in the application record.

See 37 C.F.R. §§2.62(c), 2.191; TMEP §§304.01-.02, 709.04-.05.

/Lauren E. Burke/

Examining Attorney

Law Office 106

(571) 272-2763

[email protected]

TO RESPOND TO THIS LETTER: Go to http://www.uspto.gov/trademarks/teas/response_forms.jsp. Please wait 48-72 hours from the

issue/mailing date before using the Trademark Electronic Application System (TEAS), to allow for necessary system updates of the application.

For technical assistance with online forms, e-mail [email protected]. For questions about the Office action itself, please contact the assigned

trademark examining attorney. E-mail communications will not be accepted as responses to Office actions; therefore, do not respond tothis Office action by e-mail.

All informal e-mail communications relevant to this application will be placed in the official application record.

WHO MUST SIGN THE RESPONSE: It must be personally signed by an individual applicant or someone with legal authority to bind an

applicant (i.e., a corporate officer, a general partner, all joint applicants). If an applicant is represented by an attorney, the attorney must sign the

response.

PERIODICALLY CHECK THE STATUS OF THE APPLICATION: To ensure that applicant does not miss crucial deadlines or official

notices, check the status of the application every three to four months using the Trademark Status and Document Retrieval (TSDR) system at

http://tsdr.uspto.gov/. Please keep a copy of the TSDR status screen. If the status shows no change for more than six months, contact the

Trademark Assistance Center by e-mail at [email protected] or call 1-800-786-9199. For more information on checking

status, see http://www.uspto.gov/trademarks/process/status/.

TO UPDATE CORRESPONDENCE/E-MAIL ADDRESS: Use the TEAS form at http://www.uspto.gov/trademarks/teas/correspondence.jsp.


https://www.uspto.gov/trademark/laws-regulations/how-satisfy-disclaimer-requirement

http://www.uspto.gov/trademarks-maintaining-trademark-registration/responding-office-actions

https://www.uspto.gov/trademarks-getting-started/process-overview/trademark-information-network#heading-14

https://www.uspto.gov/trademarks-getting-started/process-overview/trademark-information-network#heading-14





http://www.uspto.gov/trademarks/process/status/

http://www.uspto.gov/trademarks/teas/correspondence.jsp

Print: Mar 22, 2019

DESIGN MARK

Serial Number 87906363

Status NON-FINAL ACTION - MAILED

Word Mark INTELLIGENT NUTRITION ASSISTANT

Standard Character Mark Yes

Type of Mark SERVICE MARK

Register PRINCIPAL

Mark Drawing Code (4) STANDARD CHARACTER MARK

OWner

87908383

SAVOR HEALTH, LLC LIMITED LIABILITY COMPANY DELAWARE 590 MADISON AVENUE, 21ST FLOOR NEW YORK NEW YORK 10022

Goods/Services Class Status -- ACTIVE. IC 042. US 100 101. G & S: Software as a service (SAAS) services featuring software for using artificial intelligence and machine learning algorithms to analyze nutrition, health and wellness programs to provide health and wellness counseling to people with chronic medical conditions; platform as a service (PAAS) featuring computer software platforms for analyzing accessing, monitoring, and sharing personalized nutrition counseling.

Goods/Services Class Status -- ACTIVE. IC 044. US 100 101. G & S: Providing personalized healthcare and medical information in the nature of virtual nutrition counseling that is comprehensive and technologically-enabled for people with chronic medical conditions; Providing customized, personalized, evidence-based information in the field of nutrition and wellness care and health care professionals via the Internet.

Filing Date 2018/05/03

Examining Attorney REID, MONICA

-1-

Print: Mar 22, 2019

Attorney of Record Rosie H. Kim

87908383

-2-

Intelligent Nutrition Assistant

G Buy Google Home

Mini for only $39.

intelligent adjective in·tel·li·gent I \ in-' te-le-j ent O \

Definition of intelligent

12:09:40 PM 3/25/2019

1 a : having or indicating a high or satisfactory degree of intelligence and mental capacity

b : revealing or reflecting good judgment or sound t hought : SKILLFUL

2 a : possessing intelligence

b : guided or directed by intellect : RATIONAL

3 a : guided or controlled by a computer

especially : SMART sense 7c

- compare DUMB sense 7

b : able to produce printed material from digital signals

// an intelligent copier

$39 $49


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Buynow I ~timoocff=.

free~

G Save $10 on

Google Home Mini.

I Buynow I Limited time offer.

Free shipping.

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$39 $49

WORD OF THE DAY I bower O a shad y place in a gard en o r forest

Get Word of the Day daily email !

Yo ur email address Fi%i+HE

G

assistant noun as·sis·tant I \ a-· si-stant O \

Definition of assistant

Buy Google Home

Mini for only $39.

1 : a person who assists someone : HELPER

also : a person holding an assistantship

2 : a device or product that provides assistance

II software assistants

// personal digital assistant

- see PDA entry 1

12:11 :43 PM 3/25/2019

$39 $49


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Buynow I Limitedtimeoffer.

free ~

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0 Priced right daily e o

Low prices today & every day.

WO RD OF T HE DAY



MXF0008TUS

Sent: 3/25/2019 12:20:21 PM


Attachments:


IMPORTANT NOTICE REGARDING YOUR

U.S. TRADEMARK APPLICATION

USPTO OFFICE ACTION (OFFICIAL LETTER) HAS ISSUED

ON 3/25/2019 FOR U.S. APPLICATION SERIAL NO. 88250565

Please follow the instructions below:

(1) TO READ THE LETTER: Click on this link or go to http://tsdr.uspto.gov, enter the U.S. application serial number, and click on

“Documents.”

The Office action may not be immediately viewable, to allow for necessary system updates of the application, but will be available within 24

hours of this e-mail notification.

(2) TIMELY RESPONSE IS REQUIRED: Please carefully review the Office action to determine (1) how to respond, and (2) the applicable

response time period. Your response deadline will be calculated from 3/25/2019 (or sooner if specified in the Office action). A response

transmitted through the Trademark Electronic Application System (TEAS) must be received before midnight Eastern Time of the last day of the

response period. For information regarding response time periods, see http://www.uspto.gov/trademarks/process/status/responsetime.jsp.

Do NOT hit “Reply” to this e-mail notification, or otherwise e-mail your response because the USPTO does NOT accept e-mails as

responses to Office actions. Instead, the USPTO recommends that you respond online using the TEAS response form located at

http://www.uspto.gov/trademarks/teas/response_forms.jsp.

(3) QUESTIONS: For questions about the contents of the Office action itself, please contact the assigned trademark examining attorney. For

technical assistance in accessing or viewing the Office action in the Trademark Status and Document Retrieval (TSDR) system, please e-mail

[email protected].

WARNING

Failure to file the required response by the applicable response deadline will result in the ABANDONMENT of your application. For

more information regarding abandonment, see http://www.uspto.gov/trademarks/basics/abandon.jsp.

PRIVATE COMPANY SOLICITATIONS REGARDING YOUR APPLICATION: Private companies not associated with the USPTO are

using information provided in trademark applications to mail or e-mail trademark-related solicitations. These companies often use names that

closely resemble the USPTO and their solicitations may look like an official government document. Many solicitations require that you pay

“fees.”

Please carefully review all correspondence you receive regarding this application to make sure that you are responding to an official document

from the USPTO rather than a private company solicitation. All official USPTO correspondence will be mailed only from the “United States

Patent and Trademark Office” in Alexandria, VA; or sent by e-mail from the domain “@uspto.gov.” For more information on how to handle

private company solicitations, see http://www.uspto.gov/trademarks/solicitation_warnings.jsp.




http://www.uspto.gov/trademarks/process/status/responsetime.jsp



http://www.uspto.gov/trademarks/basics/abandon.jsp

http://www.uspto.gov/trademarks/solicitation_warnings.jsp

*** User:lburke ***

# Total Dead Live Live Status/ Search

Marks Marks Viewed Viewed Search

Docs Images Duration

01 3994 N/A 0 0 0:01 *mix*[bi,ti] and live[ld]

02 16567 N/A 0 0 0:01 *fit*[bi,ti] and live[ld]

03 1929 N/A 0 0 0:01 *intelligent*[bi,ti] and live[ld]

04 3079 N/A 0 0 0:02 *nutrition*[bi,ti] and live[ld]

05 364 N/A 0 0 0:02 *assistant*[bi,ti] and live[ld]

06 1 0 1 1 0:01 1 and 2 and 3 and 4 and 5

07 41 0 41 39 0:01 1 and (2 or 3 or 4 or 5)

08 80 0 80 80 0:01 2 and (3 or 4 or 5)

09 9 0 9 9 0:01 3 and (4 or 5)

10 2 0 2 2 0:01 4 and 5

11 23926 N/A 0 0 0:03 *m{"iy"}{"ckqx"}*[bi,ti] and live[ld]

12 16632 N/A 0 0 0:02 *f{"iy"}t*[bi,ti] and live[ld]

13 93 0 93 91 0:01 11 and 12

14 63 0 63 61 0:01 13 not 7

15 760 N/A 0 0 0:01 *ph{"iy"}t*[bi,ti] and live[ld]

16 8 0 8 7 0:01 11 and 15

Session started 3/22/2019 1:38:37 PM

Session finished 3/22/2019 2:37:16 PM

Total search duration 0 minutes 21 seconds

Session duration 58 minutes 39 seconds

Defaut NEAR limit=1ADJ limit=1

Sent to TICRS as Serial Number: 88250565


OMB No. 0651-0009 (Exp 02/28/2021)

Trademark/Service Mark Application, Principal Register


Filing Date: 01/04/2019


Input Field Entered


MARK INFORMATION

*MARK Mixfit Intelligent Nutrition Assistant



LITERAL ELEMENT Mixfit Intelligent Nutrition Assistant

MARK STATEMENTThe mark consists of standard characters, without claim to any

particular font style, size, or color.

REGISTER Principal

APPLICANT INFORMATION

*OWNER OF MARK Mixfit Inc.

*STREET 51 Melcher Street

*CITY Boston

*STATE

(Required for U.S. applicants)Massachusetts

*COUNTRY United States

*ZIP/POSTAL CODE

(Required for U.S. and certain international addresses)02210

LEGAL ENTITY INFORMATION

TYPE corporation

STATE/COUNTRY OF INCORPORATION Delaware

GOODS AND/OR SERVICES AND BASIS INFORMATION


*IDENTIFICATION

Computer software and downloadable mobile applications

relating to personalized nutrition for enabling users to receive a

beverage containing a personalized dosage of nutraceuticals

and other supplements; computer software and downloadable

mobile applications for enabling users to receive, access, and

provide health, lifestyle and nutritional data and information

for formulating a beverage containing a personalized dosage of

nutraceuticals and other supplements; downloadable computer

software and mobile applications that provide users with

remote operation of personalized nutrition dispensing devices

and transmission of data between personalized nutrition

dispensing devices and users' mobile devices and computers

using wireless communication for facilitating dispensing a

../RFA0002.JPG


and other supplements; electronic and nutraceutical dispensing

systems comprised of a machine that stores nutraceuticals and

other supplements and dispenses a beverage containing a

personalized dosage of nutraceuticals and other supplements at

specified times and has internet connectivity with other devices

for collecting, integrating and processing users' health, lifestyle

and nutritional data for enabling the machine to dispense a


and other supplements

FILING BASIS SECTION 1(b)


*IDENTIFICATION

Providing an online, non-downloadable, Internet-based

software application for use in the field of personalized

nutrition, namely, enabling users to receive a beverage

containing a personalized dosage of nutraceuticals and other

supplements; providing an online, non-downloadable, Internet-

based software application in the field of personalized nutrition

for enabling users to access users and collective lifestyle,

health and nutritional data; providing an online, non-

downloadable, Internet-based software application for

accessing and viewing information and data pertaining to

personalized nutrition services; software as a service (SAAS)

services featuring software for use in the field of personalized

nutrition, namely, enabling users to receive a beverage

containing a personalized dosage of nutraceuticals and other

supplements

FILING BASIS SECTION 1(b)

ATTORNEY INFORMATION

NAME Leo V. Gureff

ATTORNEY DOCKET NUMBER MXF0008TUS

FIRM NAME Cantor Colburn LLP

STREET 1800 Diagonal Road; Suite 400

CITY Alexandria

STATE Virginia


ZIP/POSTAL CODE 22314-2840

PHONE 703-236-4500 x4117

EMAIL ADDRESS [email protected]


CORRESPONDENCE INFORMATION

NAME Leo V. Gureff

FIRM NAME Cantor Colburn LLP

STREET 1800 Diagonal Road; Suite 400

CITY Alexandria

STATE Virginia


ZIP/POSTAL CODE 22314-2840

PHONE 703-236-4500 x4117

*EMAIL ADDRESS [email protected]; [email protected]

*AUTHORIZED TO COMMUNICATE VIA EMAIL Yes

FEE INFORMATION

APPLICATION FILING OPTION TEAS RF

NUMBER OF CLASSES 2

APPLICATION FOR REGISTRATION PER CLASS 275

*TOTAL FEE DUE 550

*TOTAL FEE PAID 550

SIGNATURE INFORMATION

SIGNATURE /Leo V. Gureff/


SIGNATORY'S POSITION Attorney of record, NY bar member


I I


OMB No. 0651-0009 (Exp 02/28/2021)

Trademark/Service Mark Application, Principal Register


Filing Date: 01/04/2019


MARK: Mixfit Intelligent Nutrition Assistant (Standard Characters, see mark)

The literal element of the mark consists of Mixfit Intelligent Nutrition Assistant.

The mark consists of standard characters, without claim to any particular font style, size, or color.

The applicant, Mixfit Inc., a corporation of Delaware, having an address of

51 Melcher Street

Boston, Massachusetts 02210

United States

requests registration of the trademark/service mark identified above in the United States Patent and Trademark Office on the Principal Register

established by the Act of July 5, 1946 (15 U.S.C. Section 1051 et seq.), as amended, for the following:

International Class 009: Computer software and downloadable mobile applications relating to personalized nutrition for enabling users to

receive a beverage containing a personalized dosage of nutraceuticals and other supplements; computer software and downloadable mobile

applications for enabling users to receive, access, and provide health, lifestyle and nutritional data and information for formulating a beverage

containing a personalized dosage of nutraceuticals and other supplements; downloadable computer software and mobile applications that provide

users with remote operation of personalized nutrition dispensing devices and transmission of data between personalized nutrition dispensing

devices and users' mobile devices and computers using wireless communication for facilitating dispensing a beverage containing a personalized

dosage of nutraceuticals and other supplements; electronic and nutraceutical dispensing systems comprised of a machine that stores nutraceuticals

and other supplements and dispenses a beverage containing a personalized dosage of nutraceuticals and other supplements at specified times and

has internet connectivity with other devices for collecting, integrating and processing users' health, lifestyle and nutritional data for enabling the

machine to dispense a beverage containing a personalized dosage of nutraceuticals and other supplements

Intent to Use: The applicant has a bona fide intention, and is entitled, to use the mark in commerce on or in connection with the identified

goods/services.


nutrition, namely, enabling users to receive a beverage containing a personalized dosage of nutraceuticals and other supplements; providing an

online, non-downloadable, Internet-based software application in the field of personalized nutrition for enabling users to access users and

collective lifestyle, health and nutritional data; providing an online, non-downloadable, Internet-based software application for accessing and

viewing information and data pertaining to personalized nutrition services; software as a service (SAAS) services featuring software for use in

the field of personalized nutrition, namely, enabling users to receive a beverage containing a personalized dosage of nutraceuticals and other

supplements

Intent to Use: The applicant has a bona fide intention, and is entitled, to use the mark in commerce on or in connection with the identified

goods/services.

The applicant's current Attorney Information:

Leo V. Gureff of Cantor Colburn LLP 1800 Diagonal Road; Suite 400

Alexandria, Virginia 22314-2840

United States

703-236-4500 x4117(phone)

[email protected] (authorized)

The attorney docket/reference number is MXF0008TUS.

The applicant's current Correspondence Information:

Leo V. Gureff

Cantor Colburn LLP

1800 Diagonal Road; Suite 400

Alexandria, Virginia 22314-2840

---

../RFA0002.JPG')

703-236-4500 x4117(phone)

[email protected];[email protected] (authorized)

E-mail Authorization: I authorize the USPTO to send e-mail correspondence concerning the application to the applicant, the applicant's

attorney, or the applicant's domestic representative at the e-mail address provided in this application. I understand that a valid e-mail address

must be maintained and that the applicant or the applicant's attorney must file the relevant subsequent application-related submissions via the

Trademark Electronic Application System (TEAS). Failure to do so will result in the loss of TEAS Reduced Fee status and a requirement to

submit an additional processing fee of $125 per international class of goods/services.

A fee payment in the amount of $550 has been submitted with the application, representing payment for 2 class(es).

Declaration

Basis:If the applicant is filing the application based on use in commerce under 15 U.S.C. § 1051(a):

The signatory believes that the applicant is the owner of the trademark/service mark sought to be registered;

The mark is in use in commerce on or in connection with the goods/services in the application;

The specimen(s) shows the mark as used on or in connection with the goods/services in the application; and

To the best of the signatory's knowledge and belief, the facts recited in the application are accurate.

And/OrIf the applicant is filing the application based on an intent to use the mark in commerce under 15 U.S.C. § 1051(b), § 1126(d),and/or § 1126(e):

The signatory believes that the applicant is entitled to use the mark in commerce;

The applicant has a bona fide intention to use the mark in commerce on or in connection with the goods/services in the

application; and

To the best of the signatory's knowledge and belief, the facts recited in the application are accurate.

To the best of the signatory's knowledge and belief, no other persons, except, if applicable, concurrent users, have the right to use the

mark in commerce, either in the identical form or in such near resemblance as to be likely, when used on or in connection with the

goods/services of such other persons, to cause confusion or mistake, or to deceive.

To the best of the signatory's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, the

allegations and other factual contentions made above have evidentiary support.

The signatory being warned that willful false statements and the like are punishable by fine or imprisonment, or both, under 18 U.S.C. §

1001, and that such willful false statements and the like may jeopardize the validity of the application or submission or any registration

resulting therefrom, declares that all statements made of his/her own knowledge are true and all statements made on information and

belief are believed to be true.

Declaration Signature

Signature: /Leo V. Gureff/ Date: 01/04/2019


Signatory's Position: Attorney of record, NY bar member

Payment Sale Number: 88250565

Payment Accounting Date: 01/07/2019


Internet Transmission Date: Fri Jan 04 19:27:01 EST 2019

TEAS Stamp: USPTO/BAS-XX.XXX.XX.X-201901041927011088

07-88250565-6207d89f6cf58ee4cb099c5c0325

22524b2fc232a83a8f21da6f89acf7f6658a7d-C

C-5661-20190104191648231405

ｾ＠

• • • •

• •

•

EXHIBIT 2


91254501


Attorney Docket No.: 6618/0019OT

IN THE UNITED STATES PATENT AND TRADEMARK OFFICE

BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD

)

Myx Fitness LLC and Palm Ventures, LLC

)

)

Opposers, )

)

v. )

)

Mixfit Inc.,

)

)

)

Applicant. )

)

Opposition No.: 91254501

Appln. Serial No. 88/250525

RESPONSES AND OBJECTIONS BY APPLICANT TO OPPOSERS’S FIRST SET OF

INTERROGATORIES

Applicant, Mixfit, Inc. (“Applicant” or “Respondent”), hereby serves the below responses

and objections to Opposers, Myx Fitness, LLC and Palm Ventures, LLC (“Opposers’”) First Set of

Interrogatories (“Interrogatories”).

Pursuant to Rule 33, Fed. R. Civ. P., and Rules 2.116 and 2.120 of the Trademark Rules of

Practice, Applicant provides the following answers to the first set of interrogatories of Opposers.

These answers are based upon the best information presently available to Applicant, and best belief

of its counsel, and are made without prejudice to the right of Applicant to make additional or

modified answers should better or further information or belief subsequently become available to

Applicant. Moreover, these answers are made without prejudice to any right of Applicant to offer

evidence on its behalf or to object to the relevance, competence or admissibility of any ground of

any evidence or witness offered by Opposers; and these answers do not constitute an admission of

competence or admissibility or evidence or a waiver of objection on any grounds.

Each interrogatory is restated below, along with any applicable responses and objections.

http://tsdr.uspto.gov/#caseNumber=88250524&caseType=SERIAL_NO&searchType=statusSearch




2

GENERAL OBJECTIONS

1. Applicant objects to the Interrogatories to the extent that they seek information that

may be protected by the attorney-client privilege, the work-product doctrine or any other privilege.

2. Applicant objects to the Interrogatories to the extent they seek the disclosure of

information that embodies, reflects or relates to trade secrets or other confidential research,

development, or commercial information as set forth in the Trademark Trial and Appeal Board

Manual of Procedure, Section 402.02 or otherwise.

3. Applicant objects to the Interrogatories to the extent they seek to impose definitions,

rules of constructions, or instructions that are broader than those set forth in the Trademark Trial

and Appeal Board Manual of Procedure, Section 402.02 or otherwise.

4. Applicant objects to the Interrogatories to the extent that they are unduly

burdensome, impermissibly vague or ambiguous or require unreasonable efforts or expense on the

part of Opposers.

5. Applicant objects to the Interrogatories to the extent they require Applicant to

answer the Interrogatories on behalf of third parties.

6. Applicant objects to the Interrogatories to the extent they require the production of

information that is outside Applicant’s possession, custody or control.


information that is either publicly available or already in the possession, custody or control of

Opposers.

8. Applicant objects to the Interrogatories to the extent that the Interrogatories are

vague or ambiguous or contain terms or phrases that are undefined and subject to varying

interpretations or meanings, and may therefore make the responses to the Interrogatories

misleading or incorrect.

3

9. Applicant objects to the Interrogatories as overly broad and unduly burdensome to

the extent that the Interrogatories call for the production of information that is not reasonably

accessible. Specifically, Applicant objects to the Interrogatories to the extent that they seek

information that cannot be located or obtained through reasonable records search.

10. To the extent the Interrogatories or related instructions regarding the logging of

privileged information seek to impose obligation on Applicant beyond the scope of the Federal

Rules of Civil Procedure or the Trademark Trial and Appeal Board Manual of Procedure,

Applicant objects to those instructions as unduly burdensome and as seeking to impose an

obligation beyond that imposed by applicable rule.

11. Applicant objects to the Interrogatories to the extent they assume disputed facts or

legal conclusions when defining the information requested.

12. Applicant reserves the right to supplement these responses or objections as may be

permitted by the Federal Rules of Civil Procedure or the Trademark Trial and Appeal Board

Manual of Procedure.

13. These general objections are deemed incorporated into each response to each of the

Interrogatories.

14. To the extent that specific general objections are cited herein in response to specific

discovery requests, those specific objections are provided because they are believed to be

particularly applicable to the discovery requests and are not to be construed as a waiver of any

other general objection applicable to information and documents falling within the scope of the

request. Moreover, the production of any non-relevant information, whether or not in response to

any discovery requests, is not to be construed as a waiver of a claim of irrelevancy.

- 4 -

RESPONSES TO INTERROGATORIES

INTERROGATORY NO.: 1. Identify each Person that furnished

information for Your responses to these Interrogatories, designating the number of the

Interrogatory for which each such Person furnished information.

Response:

Person: Reza Zanjani

Title: Chief Executive Officer

Company: Mixfit, Inc.

Person: Marco Iotti

Title: Chief Technical and Scientific Officer


INTERROGATORY NO.: 2. For each of the goods and services identified in

the Application, set forth the date You first used the Applied-For Mark in U.S. commerce in

connection therewith and the geographic areas in which each such good and service has been

marketed and distributed.

Response: Respondent objects to this interrogatory on the ground that it is

overly broad, impermissibly vague and/or ambiguous and unduly

burdensome in that it seeks the identification of each geographical areas in

which the Applied-For Mark was used. Opposers’ interrogatory does not

take into account the nature and breadth of Respondent’s business

worldwide. It is likely impossible for anyone to identify each geographical

location for which its mark has been used in the marketing and sale of its

goods and services, and the respective dates of use for each geographical

location. However, without waiver of said objection, Respondent answers

- 5 -

that its mark is used in connection with the goods and services identified in

the Application in the United Sates at least as early as March 01, 2019.

INTERROGATORY NO.: 3. Identify the Bates number of the Documents You

produce during this Opposition evidencing use of the Applied-For Mark in connection with

each of the goods and services identified in the Application as of the dates stated by You in

response to Interrogatory No. 2 above.




which the Applied-For Mark was used and the dates the mark was used in

any such geographical area.

INTERROGATORY NO.: 4. Describe in detail how You selected, conceived,

and adopted the Applied-For Mark, including, without limitation, the date range during which

the selection/conception/adoption process occurred, the Persons involved, any other Marks that

were considered, and any other context surrounding the process of selecting, conceiving, and

adopting the Applied-For Mark.


unduly burdensome, overly vague and ambiguous as it refers to “detail how

You selected, conceived, and adopted the Applied-For Mark, including,

without limitation, the date range during which the

selection/conception/adoption process occurred, the Persons involved, any

other Marks that were considered, and any other context surrounding the

process of selecting, conceiving, and adopting the Applied-For Mark”

- 6 -

However, without waiver of said objection, Respondent will, for the purpose

of answering this interrogatory, assume that the phrase “selected, conceived,

and adopted ” means the decision to use Respondent’s mark. Subject to the

forgoing objection, Applicant refers Opposers to the documents produced in

response to Request 5.

INTERROGATORY NO.: 5. Identify each Person who had any

involvement in Your decision to attempt to register the Applied-For Mark with the U.S.

Patent and Trademark Office.


overly vague and ambiguous as it refers to “each Person” who had “any”

involvement with the decision to register the Applied-for Mark. In addition,

However, without waiver of said objection, Respondent refers Opposers to the

response to the Interrogatory No.: 1.

INTERROGATORY NO.: 6. State the date on which and the manner by which

You first became aware of Opposers’ Marks, including, without limitation, identifying each

Person who first became aware of Opposers’ Marks.


overly vague and ambiguous as it refers to “the manner by which You first

became aware of Opposers’ Marks” and requests to identify “each person

who first became aware of Opposers’ Marks”. However, without waiver of

said objection, Respondent submits that it became aware of Opposers’

Marks at the time of receiving the Notice of Opposition filed by the

- 7 -

Opposers.

INTERROGATORY NO.: 7. Describe in detail all Communications between

You and any Person Concerning any or all of Opposers, Opposers’ trademark rights, and/or

Opposers’ Marks, including the date and place of the Communication, the manner of the

Communication (e.g., by telephone, letter email, etc.), the substance of the Communication,

and every Person who participated in or otherwise has knowledge of the Communication.

Response: Respondent objects to this interrogatory on the ground that it seeks

information which is protected under the attorney client and attorney work

product privileges. Respondent objects to this interrogatory on the ground that

it is irrelevant to the present proceeding in that it does not pertain to the claims

and issues of the proceeding nor reasonably calculated to lead to the discovery

of admissible evidence.

INTERROGATORY NO.: 8. Describe in detail every instance in which one of

Your customers inquired whether, or otherwise indicated the mistaken belief that, You or any

of your goods or services (including, but not limited to, Applicant’s Products) were affiliated

with, endorsed by, sponsored by, approved by, or otherwise connected to, Opposers, including,

without limitation, the date of each such instance, the names of the Persons involved, and the

context surrounding each such instance.

Response: Respondent is unaware of any instances in which any person has

mistakenly contacted Respondent about Opposers’ goods or services provided in

connection with Opposers’ Marks or thought that Opposers’ services goods and

provided under Opposers’ Mark are or were affiliated, associated, endorsed, or

connected to Respondent or Respondent’s goods and services provided under

- 8 -

Respondent’s Marks.

INTERROGATORY NO.: 9. Describe in detail the target market for each of

Applicant’s Products, including, without limitation, age range, gender, geographic location,

and any other demographics used by You to identify the target market for each of Applicant’s

Products.


overly vague and ambiguous as it refers to “the target market for each of

Applicant’s Products, including, without limitation, age range, gender,

geographic location, and any other demographics used by You to identify the

target market for each of Applicant’s Products”. However, without waiver

of said objection, Respondent markets its products and services to

consumers interested in personalized nutrition and supplements.

INTERROGATORY NO.: 10. Identify the channels in which You market or

advertise, or intend to market or advertise, Applicant’s Products.


confidential business information. However, without waiving said objection,

Respondent submits that it advertises its product and services in the United

States and worldwide through normal channels, including, without limitation,

its own website (gomixfit. com) and social media channels.

INTERROGATORY NO.: 11. Identify the channels in which You sell or

distribute, or intend to sell or distribute, each of Applicant’s Products.


- 9 -


Respondent submits that it sells and intends to sell its Products through standard

commercial channels, including, without limitation, direct to consumer sales via

various online and brick-and-mortar marketplaces.

INTERROGATORY NO.: 12. Identify all retail outlets (whether brick-and-

mortar stores, online, or otherwise) which have sold or distributed, or which you intend to

sell or distribute, any of Applicant’s Products to customers located in the United States, and

provide the date range when each such outlet has sold or distributed Applicant’s Products to

customers located in the United States.



Respondent submits that Respondent sold its Products through its own website

(gomixfit.com) and mobile application.

INTERROGATORY NO.: 13. Set forth the price range at which You sell, or

intend to sell, each of Applicant’s Products.



Respondent submits that Respondent’s nutrient delivery system is sold for $180

per device with the monthly subscription of about $50.

INTERROGATORY NO.: 14. Describe in detail all plans You have to expand

your goods and services offered in connection with the Applied-For Mark.


confidential business information. In addition, Respondent objects to this

- 10 -

interrogatory on the ground that it is overly vague and ambiguous as it refers

to “all plans” to expand Applicant’s goods and services offerings.

INTERROGATORY NO.: 15. Describe in detail any advertising, marketing,

and promotion You have done or plan to do that uses the Applied-For Mark, including,

without limitation, the nature of such advertising, marketing, or promotion, and temporal

and geographic scope



interrogatory on the ground that it is overly vague and ambiguous as it

refers to “any advertising, marketing, and promotion” Applicant have done or

plan to do that uses the Applied-for Mark.

INTERROGATORY NO.: 16. Set forth Your annual expenditures for

advertising, marketing, and promoting Applicant’s Products, from the date of Your first

use of the Applied-For Mark in connection therewith to the present.

Response: Respondent objects to this interrogatory on the ground that it

seeks confidential business information that is irrelevant to the present

proceeding in that it does not pertain to the claims and issues of the

proceeding nor reasonably calculated to lead to the discovery of admissible

evidence.

INTERROGATORY NO.: 17. Set forth the total amounts of annual sales (in

U.S. dollars and units) of each of Applicant’s Products, from the date of Your first use of

the Applied-For Mark in connection therewith to the present.


- 11 -

confidential business information. Further, Respondent objects to this

interrogatory on the ground that it is irrelevant to the present proceeding in

that it does not pertain to the claims and issues of the proceeding nor

reasonably calculated to lead to the discovery of admissible evidence.

INTERROGATORY NO.: 18. Identify all websites and social media

pages on which You have used the Applied-For Mark and the date such use

commenced and, if applicable, ended.


seeks confidential business information. However, without waiver of said

objection, with regard to websites and social media, Respondent submits

that it uses the Applied-for Mark on the website located at gomixfit.com

domain, and maintains Facebook, Instagram, Twitter and LinkedIn

social media accounts.

INTERROGATORY NO.: 19. Identify any agreement, contract, or license

You have entered into with any Person Relating To the Applied-For Mark.


seeks confidential business information that it is irrelevant to the present



evidence. Notwithstanding said objection, Respondent states that

Respondent has entered into standard supply, manufacturing, business

partnership agreements in order to sell and distribute its products and

services.

- 12 -

INTERROGATORY NO.: 20. State all facts supporting each of the

affirmative defenses asserted in the Answer.


seeks premature disclosure of Respondent’s defense in this proceeding.


MIXFIT INC.

/Leo V. Gureff/

By:

Leo V. Gureff

MUNCY, GEISSLER, OLDS & LOWE,

P.C. (MG-IP)

4000 Legato Road, Suite 310

Fairfax, VA 22033

Phone: 703.621.7140 ext. 146

Email: [email protected]

Date: August 26, 2020

LVG/

13


I hereby certify that a true copy of the foregoing RESPONSES AND OBJECTIONS BY

APPLICANT TO OPPOSERS’S FIRST SET OF INTERROGATORIES

was served on counsel for Opposers, this 26 day of August, 2020, via email

([email protected]) to:

JESSICA S. RUTHERFORD

FERDINAND IP, LLC

1221 POST ROAD EAST

WESTPORT, CT 06880

UNITED STATES

/Leo V. Gureff/

_________________________________________

Leo V. Gureff


EXHIBIT 3


91254501





)

Myx Fitness LLC and Palm Ventures, LLC

)

)

Opposers, )

)

v. )

)

Mixfit Inc.,

)

)

)

Applicant. )

)



SUPPLEMENTAL RESPONSES AND OBJECTIONS BY APPLICANT TO

OPPOSERS’S FIRST SET OF INTERROGATORIES

Applicant, Mixfit, Inc. (“Applicant” or “Respondent”), hereby serves the below supplemental

responses and objections to Opposers, Myx Fitness, LLC and Palm Ventures, LLC (“Opposers’”)

First Set of Interrogatories (“Interrogatories”).

Pursuant to Rule 33, Fed. R. Civ. P., and Rules 2.116 and 2.120 of the Trademark Rules of

Practice, Applicant provides the following answers to the first set of interrogatories of Opposers.

These answers are based upon the best information presently available to Applicant, and best belief

of its counsel, and are made without prejudice to the right of Applicant to make additional or

modified answers should better or further information or belief subsequently become available to

Applicant. Moreover, these answers are made without prejudice to any right of Applicant to offer

evidence on its behalf or to object to the relevance, competence or admissibility of any ground of

any evidence or witness offered by Opposers; and these answers do not constitute an admission of

competence or admissibility or evidence or a waiver of objection on any grounds.

Each interrogatory is restated below, along with any applicable responses and objections.





2

GENERAL OBJECTIONS

1. Applicant objects to the Interrogatories to the extent that they seek information that

may be protected by the attorney-client privilege, the work-product doctrine or any other privilege.

2. Applicant objects to the Interrogatories to the extent they seek the disclosure of




3. Applicant objects to the Interrogatories to the extent they seek to impose definitions,

rules of constructions, or instructions that are broader than those set forth in the Trademark Trial and

Appeal Board Manual of Procedure, Section 402.02 or otherwise.

4. Applicant objects to the Interrogatories to the extent that they are unduly burdensome,

impermissibly vague or ambiguous or require unreasonable efforts or expense on the part of

Opposers.

5. Applicant objects to the Interrogatories to the extent they require Applicant to answer

the Interrogatories on behalf of third parties.




information that is either publicly available or already in the possession, custody or control of

Opposers.

8. Applicant objects to the Interrogatories to the extent that the Interrogatories are vague

or ambiguous or contain terms or phrases that are undefined and subject to varying interpretations

or meanings, and may therefore make the responses to the Interrogatories misleading or incorrect.

3

9. Applicant objects to the Interrogatories as overly broad and unduly burdensome to

the extent that the Interrogatories call for the production of information that is not reasonably

accessible. Specifically, Applicant objects to the Interrogatories to the extent that they seek

information that cannot be located or obtained through reasonable records search.

10. To the extent the Interrogatories or related instructions regarding the logging of

privileged information seek to impose obligation on Applicant beyond the scope of the Federal Rules

of Civil Procedure or the Trademark Trial and Appeal Board Manual of Procedure, Applicant objects

to those instructions as unduly burdensome and as seeking to impose an obligation beyond that

imposed by applicable rule.

11. Applicant objects to the Interrogatories to the extent they assume disputed facts or


12. Applicant reserves the right to supplement these responses or objections as may be

permitted by the Federal Rules of Civil Procedure or the Trademark Trial and Appeal Board Manual

of Procedure.

13. These general objections are deemed incorporated into each response to each of the

Interrogatories.

14. To the extent that specific general objections are cited herein in response to specific

discovery requests, those specific objections are provided because they are believed to be particularly

applicable to the discovery requests and are not to be construed as a waiver of any other general

objection applicable to information and documents falling within the scope of the request. Moreover,

the production of any non-relevant information, whether or not in response to any discovery requests,

is not to be construed as a waiver of a claim of irrelevancy.

- 4 -

RESPONSES TO INTERROGATORIES

INTERROGATORY NO.: 1. Identify each Person that furnished

information for Your responses to these Interrogatories, designating the number of the

Interrogatory for which each such Person furnished information.

Response:

Person: Reza Zanjani

Title: Chief Executive Officer


Person: Marco Iotti

Title: Chief Technical and Scientific Officer


INTERROGATORY NO.: 2. For each of the goods and services identified in the

Application, set forth the date You first used the Applied-For Mark in U.S. commerce in

connection therewith and the geographic areas in which each such good and service has been

marketed and distributed.


overly broad, impermissibly vague and/or ambiguous and unduly burdensome

in that it seeks the identification of each geographical areas in which the

Applied-For Mark was used. Opposers’ interrogatory does not take into

account the nature and breadth of Respondent’s business worldwide. It is

likely impossible for anyone to identify each geographical location for which

its mark has been used in the marketing and sale of its goods and services, and

the respective dates of use for each geographical location. However, without

waiver of said objection, Respondent answers that its mark is used in

- 5 -

connection with the goods and services identified in the Application in the

United Sates at least as early as March 01, 2019.

INTERROGATORY NO.: 3. Identify the Bates number of the Documents You

produce during this Opposition evidencing use of the Applied-For Mark in connection with

each of the goods and services identified in the Application as of the dates stated by You in

response to Interrogatory No. 2 above.




which the Applied-For Mark was used and the dates the mark was used in

any such geographical area.

Supplemental Response: Without waiver of the forgoing objections,

Respondent answers that it has already produced Documents evidencing the

use of the Respondent’s mark in the U.S. commerce as early as March 01,

2019. However, Respondent will provide the Documents again for your

convenience.

INTERROGATORY NO.: 4. Describe in detail how You selected, conceived,

and adopted the Applied-For Mark, including, without limitation, the date range during which

the selection/conception/adoption process occurred, the Persons involved, any other Marks that

were considered, and any other context surrounding the process of selecting, conceiving, and

adopting the Applied-For Mark.


unduly burdensome, overly vague and ambiguous as it refers to “detail how

- 6 -

You selected, conceived, and adopted the Applied-For Mark, including,

without limitation, the date range during which the

selection/conception/adoption process occurred, the Persons involved, any

other Marks that were considered, and any other context surrounding the

process of selecting, conceiving, and adopting the Applied-For Mark.”

However, without waiver of said objection, Respondent will, for the purpose

of answering this interrogatory, assume that the phrase “selected, conceived,

and adopted” means the decision to use Respondent’s mark. Subject to the

forgoing objection, Applicant refers Opposers to the documents produced in



Respondent will produce additional documents, if any, based on reasonable

search of Respondent’s records.

INTERROGATORY NO.: 5. Identify each Person who had any

involvement in Your decision to attempt to register the Applied-For Mark with the U.S.

Patent and Trademark Office.


overly vague and ambiguous as it refers to “each Person” who had “any”

involvement with the decision to register the Applied-for Mark. In addition,

However, without waiver of said objection, Respondent refers Opposers to the

response to the Interrogatory No.: 1.

INTERROGATORY NO.: 6. State the date on which and the manner by which

You first became aware of Opposers’ Marks, including, without limitation, identifying each

- 7 -

Person who first became aware of Opposers’ Marks.


overly vague and ambiguous as it refers to “the manner by which You first

became aware of Opposers’ Marks” and requests to identify “each person

who first became aware of Opposers’ Marks”. However, without waiver of

said objection, Respondent submits that it became aware of Opposers’

Marks at the time of receiving the Notice of Opposition filed by the

Opposers.

INTERROGATORY NO.: 7. Describe in detail all Communications between

You and any Person Concerning any or all of Opposers, Opposers’ trademark rights, and/or

Opposers’ Marks, including the date and place of the Communication, the manner of the

Communication (e.g., by telephone, letter email, etc.), the substance of the Communication,

and every Person who participated in or otherwise has knowledge of the Communication.


information which is protected under the attorney client and attorney work

product privileges. Respondent objects to this interrogatory on the ground that

it is irrelevant to the present proceeding in that it does not pertain to the claims

and issues of the proceeding nor reasonably calculated to lead to the discovery of

admissible evidence.

INTERROGATORY NO.: 8. Describe in detail every instance in which one of

Your customers inquired whether, or otherwise indicated the mistaken belief that, You or any

of your goods or services (including, but not limited to, Applicant’s Products) were affiliated

with, endorsed by, sponsored by, approved by, or otherwise connected to, Opposers, including,

- 8 -

without limitation, the date of each such instance, the names of the Persons involved, and the

context surrounding each such instance.

Response: Respondent is unaware of any instances in which any person has

mistakenly contacted Respondent about Opposers’ goods or services provided in

connection with Opposers’ Marks or thought that Opposers’ services goods and

provided under Opposers’ Mark are or were affiliated, associated, endorsed, or

connected to Respondent or Respondent’s goods and services provided under

Respondent’s Marks.

INTERROGATORY NO.: 9. Describe in detail the target market for each of

Applicant’s Products, including, without limitation, age range, gender, geographic location,

and any other demographics used by You to identify the target market for each of Applicant’s

Products.


overly vague and ambiguous as it refers to “the target market for each of

Applicant’s Products, including, without limitation, age range, gender,

geographic location, and any other demographics used by You to identify the

target market for each of Applicant’s Products”. However, without waiver

of said objection, Respondent markets its products and services to

consumers interested in personalized nutrition and supplements.


Respondent markets its Products and services under the mark MIXFIT

INTELLIGENT NUTRITION ASSISTANT to health-minded consumers,

including, without the limitation, consumers that are interested in

- 9 -

personalized nutrition.

INTERROGATORY NO.: 10. Identify the channels in which You market or

advertise, or intend to market or advertise, Applicant’s Products.



Respondent submits that it advertises its product and services in the United

States and worldwide through normal channels, including, without limitation,

its own website (gomixfit. com) and social media channels.


Respondent submits that that it advertises its product and services in the

United States through social media channels, including: Facebook, Instagram

and Twitter.

INTERROGATORY NO.: 11. Identify the channels in which You sell or

distribute, or intend to sell or distribute, each of Applicant’s Products.



Respondent submits that it sells and intends to sell its Products through standard

commercial channels, including, without limitation, direct to consumer sales via

various online and brick-and-mortar marketplaces.


Respondent submits that consumers are able to purchase its Products and

services via gomixfit.com website (see https://gomixfit.com/products/mixfit-

v2-dispenser-bundle).

- 10 -

INTERROGATORY NO.: 12. Identify all retail outlets (whether brick-and-

mortar stores, online, or otherwise) which have sold or distributed, or which you intend to

sell or distribute, any of Applicant’s Products to customers located in the United States, and

provide the date range when each such outlet has sold or distributed Applicant’s Products to

customers located in the United States.



Respondent submits that Respondent sold its Products through its own website

(gomixfit.com) and mobile application.

INTERROGATORY NO.: 13. Set forth the price range at which You sell, or

intend to sell, each of Applicant’s Products.



Respondent submits that Respondent’s nutrient delivery system is sold for $180

per device with the monthly subscription of about $50.

INTERROGATORY NO.: 14. Describe in detail all plans You have to expand

your goods and services offered in connection with the Applied-For Mark.



interrogatory on the ground that it is overly vague and ambiguous as it refers

to “all plans” to expand Applicant’s goods and services offerings.

INTERROGATORY NO.: 15. Describe in detail any advertising, marketing,

and promotion You have done or plan to do that uses the Applied-For Mark, including,

- 11 -

without limitation, the nature of such advertising, marketing, or promotion, and temporal

and geographic scope



interrogatory on the ground that it is overly vague and ambiguous as it

refers to “any advertising, marketing, and promotion” Applicant have done or

plan to do that uses the Applied-for Mark.

INTERROGATORY NO.: 16. Set forth Your annual expenditures for

advertising, marketing, and promoting Applicant’s Products, from the date of Your first use

of the Applied-For Mark in connection therewith to the present.


confidential business information that is irrelevant to the present proceeding

in that it does not pertain to the claims and issues of the proceeding nor


Supplemental Response: Notwithstanding and without waiver of the

objections stated above, Respondent’s marketing and advertising expenditures

are estimated as follows:

Year Excess of

2019 470,000

INTERROGATORY NO.: 17. Set forth the total amounts of annual sales (in

U.S. dollars and units) of each of Applicant’s Products, from the date of Your first use of

the Applied-For Mark in connection therewith to the present.

- 12 -


confidential business information. Further, Respondent objects to this

interrogatory on the ground that it is irrelevant to the present proceeding in

that it does not pertain to the claims and issues of the proceeding nor


Supplemental Response: Notwithstanding and without waiver of the objections

stated above, Respondent responds that its mark is used on a range of

Products and services, and Respondent does not maintain separate financial

records for sales under its Mark, however, Respondent’s total sales are as

follows:

Year Excess of

2019 $34,700

INTERROGATORY NO.: 18. Identify all websites and social media

pages on which You have used the Applied-For Mark and the date such use

commenced and, if applicable, ended.


seeks confidential business information. However, without waiver of said

objection, with regard to websites and social media, Respondent submits

that it uses the Applied-for Mark on the website located at gomixfit.com

domain, and maintains Facebook, Instagram, Twitter and LinkedIn

social media accounts.

INTERROGATORY NO.: 19. Identify any agreement, contract, or license

- 13 -

You have entered into with any Person Relating To the Applied-For Mark.


seeks confidential business information that it is irrelevant to the present



evidence. Notwithstanding said objection, Respondent states that

Respondent has entered into standard supply, manufacturing, business

partnership agreements in order to sell and distribute its products and

services.

INTERROGATORY NO.: 20. State all facts supporting each of the

affirmative defenses asserted in the Answer.


seeks premature disclosure of Respondent’s defense in this proceeding.


MIXFIT INC.

/Leo V. Gureff/

By:

Leo V. Gureff


P.C. (MG-IP)


Fairfax, VA 22033

Phone: 703.621.7140 ext. 146

Email: [email protected] Date: October 23, 2020

LVG/

14


I hereby certify that a true copy of the foregoing SUPPLEMENTAL RESPONSES AND

OBJECTIONS BY APPLICANT TO OPPOSERS’S FIRST SET OF INTERROGATORIES

was served on counsel for Opposers, this 23 day of October, 2020, via email



FERDINAND IP, LLC

1221 POST ROAD EAST

WESTPORT, CT 06880

UNITED STATES

/Leo V. Gureff/

________________________________________

Leo V. Gureff


EXHIBIT 4


91254501


MUNCY, GEISSLER, OLDS & LOWE, P.C.

JOE M. (KEN) MUNCY

MARTIN R. GEISSLER*

MARK E. OLDS

SCOTT L. LOWE

JOHN L. CICCOZZI*

DANIEL PODHAJNY

P. JAY HINES

JEFFREY H. KAUFMAN

ROBERTA S. BREN

SCOTT M. TULINO

AARON J. SANDERS*

ALLISON M. TULINO

KYOKO IMAI

LEO V. GUREFF*

ASSOCIATES: SIMONE CHEN

FLOYD E. CANFIELD

PAMELA BUFF BAKER*

PATENT AGENTS: TETSU YOSHIDA

TINGTING LIU

MATTHEW ANDERSON

INTELLECTUAL PROPERTY LAW 4000 LEGATO ROAD, SUITE 310 FAIRFAX, VIRGINIA 22033 USA

TEL: 1.703.621.7140 FAX: 1.703.621.7155 FAX: 1.703.621.7173

e-mail: [email protected] www.mg-ip.com

PRIVILEGED AND CONFIDENTIAL

COMMUNICATION OF COUNSEL

OF COUNSEL: ROBERT F. GNUSE

RUI W. GEISSLER*

TYLER S. BROWN*

HYUNG SOHN

H. DAVID STARR*

MARCUS H. LUEPKE*

CHARLES EGGERS*

HOWARD SEO*

KAMRAN EMDADI*

TECHNICAL ADVISORS: SHAY CANFIELD+

KENTARO HIGUCHI+

YU-TE (TERRY) CHEN+

INTELLECTUAL PROPERTY ADVISORS: SUSAN BRADY BLASCO+

ROMAN CAMPOS+

*ADMITTED TO A BAR OTHER THAN VIRGINIA + NOT AN ATTORNEY OR AGENT

[email protected] 703.621.7140 x146

December 29, 2020

VIA EMAIL

([email protected])

Jessica S. Rutherford FERDINAND IP, LLC 1221 Post Road east Westport, CT 06880 UNITED STATES

RE: Mixfit Oppositions (91254501; 91254502) Our Ref Nos.: 6618/0019OT and 6618/0020OT; Your Ref.: UNKNOWN

Dear Jessica:

This is in response to your letter, dated December 22, 2020. Subject to the objections set

forth in the Applicant’s responses to the Opposers’ First Set of Interrogatories and First Request

for Production, Applicant submits the following information and responses.

1. Consistent with Trademark Rule 2.116(g), which automatically imposes a standard Protective Order on these proceedings, you have confirmed that Mixfit is not withholding any documents or information on the ground that the Opposers’ requests seek trade secret and/or confidential information.

Jessica S. Rutherford FERDINAND IP, LLC December 29, 2020

Response: Applicant confirms that it performed a reasonable search and produced non-privileged documents responsive to the Opposers’ requests within its possession, custody, or control to the extent that such documents are relevant to these proceedings.

2. Interrogatories No. 2-3 and RFPs 15-16 seek information and evidence relating to the first use of the Marks in commerce and the geographic location of such use. Mixfit has provided a receipt showing a sale in the amount of $399 on March 1, 2019 (“Your Mixfit Inc. receipt [#1514- 8461].pdf”), but it is not clear from the receipt where the sale occurred (US or abroad) and what product was sold. The receipt also does not evidence use of the Mixfit Intelligent Nutrition Assistant Mark. You agreed to search for and produce additional information and documents relating to the first use of each of the Marks in commerce, including the Mixfit Intelligent Nutrition Assistant Mark, and documents relating to the geographic area where goods and services have been marketed. Response: Applicant agrees to perform a reasonable search and produce non-privileged documents responsive to this Request within its possession, custody, or control to the extent that such documents are relevant to these proceedings. In particular, Applicant will produce documents relating to the downloads of the Mixfit Applications available on the GooglePlay (https://play.google.com/store/apps/details?id=com.mixfit.mixfit&hl=en_US&gl=US) and Apple’s App Store (https://apps.apple.com/us/app/mixfit/id1440172094) as well as electronic sales data that is combined for Mixfit device and Core Pack. Mixfit Application includes Mixfit proprietary software nutritional engine that is marketed under MIXFIT INTELLIGENT NUTRITION ASSISTANT Mark.

3. Interrogatory No. 4 and RFPs 5, 8-10 seek information and documents concerning the selection and adoption of the Marks. Mixfit has produced one document (Branding Framework_draft.pdf) that discusses proposals to brand specific products, and an email relating to possible acronyms for MINA (“Re Docs to review for Visual Brand … design.pdf”), but the Marks already appear in use in these documents and there is no discussion relating to how the Marks were selected or created. You agreed to search for and produce additional responsive documents and information, or if no such documents or information exists, to confirm this in writing. Response: Applicant submits that no additional documents exist that are responsive to the RFPs 5, 8-10. Notwithstanding the forgoing, Applicant submits that the term “mixfit” consists of the word “mix” that signifies the action of combining and the resulting mixture, coupled with the word “fit” that signifies wellbeing, health and strength. Accordingly, “mixfit” suggests a mixture for improvement of one’s wellbeing, health and fitness. The term was used as Applicant’s corporate name, which was submitted to the State of Delaware as early as December 17, 2015. Applicant will provide the supporting incorporation document.

4. Interrogatory No. 14 and RFPs 31-32 & 35 seek information and documents relating to expansion plans, business plan and forecasts, and documents exchanged between Mixfit


Response: Applicant submits that no additional documents exist that are responsive to Interrogatory No. 19 and RFP 13.

9. Interrogatory No. 20 seeks facts supporting affirmative defenses. You agreed to provide information responsive to this Interrogatory. Response: Applicant confirms that it will perform a reasonable search and produce documents responsive to the Opposers’ requests within its possession, custody, or control to the extent that such documents are relevant to these proceedings.

10. RFP No. 6 seeks all documents relating to trademark searches. Although you agreed in your October 13, 2020 letter to me that “search reports are discoverable,” Mixfit has not yet produced any such reports, maintaining only that “the result of the search did not contain any of the Opposer’s marks or applications” or otherwise identify Opposer You requested citations establishing that search reports are discoverable. For such authority, please see Trademark Trial and Appeal Board Manual of Procedure (“TBMP”) § 414(6); Fisons Ltd. v. Capability Brown Ltd., 209 USPQ 167, 170 (TTAB 1980); and Goodyear

Tire & Rubber Co. v. Tyrco Industries, 186 USPQ 207, 208 (TTAB 1975). Please confirm that you will produce all trademark search reports relating to the Marks. Response: Applicant confirms that it will produce documents responsive to the Opposers’ requests within its possession, custody, or control to the extent that such documents are not privileged and relevant to these proceedings

11. RFP No. 7 seeks documents relating to opinions concerning the Marks. You have confirmed that no such opinions, or documents relating to such opinions, exists. Response: Applicant submits that no documents exist that are responsive to Interrogatory No. 7.

12. RFP No. 14 seeks documents relating to Mixfit’s decision to attempt to register its Marks. You have confirmed that no such documents exist. Response: Applicant submits that no documents exist that are responsive to Interrogatory No. 14.

13. RFP Nos. 19-22 and 50 seek documents relating Opposers and Opposers’ Marks, including documents showing that an opinion was given regarding possible conflicts with Opposers’ Marks, and copies of any non-privileged statements or opinions relating to Opposer or Opposers’ Mark and the Applied-For Marks. You have confirmed that no such documents exist. Response: Applicant submits that no documents exist that are responsive RFP Nos. 19-22 and 50.


14. RFP No. 36 seeks documents sufficient to show the name, job title and job description of

every person involved in the development, design, marketing and distribution of Mixfit’s goods and services. You have agreed to search for and produce responsive documents that identify and describe each such person, in addition to the two individuals identified in Mixfit’s Response to Opposers’ Interrogatory No. 1. Response:

David Phillips Mixfit, Inc. Busines Development Director

Thank you for your time and prompt attention to this matter.

Very truly yours,

_____________________ Leo V. Gureff LVG/

EXHIBIT 5


91254501





)

Myx Fitness LLC; Palm Ventures, LLC

)

)

Opposers, )

)

v. )

)

Mixfit Inc., )

)

)

Applicant. )

)



APPLICANT’S RESPONSE TO OPPOSERS’ FIRST SET OF REQUESTS FOR

PRODUCTION OF DOCUMENTS AND THIINGS

Applicant, Mixfit, Inc. (“Applicant”), hereby serves the below responses and objections

to Opposers, MYX Fitness and Palm Ventures, LLC. (together, “Opposers’”) First Request for

Production of Documents and Things (“Requests”).

Each Request is restated below, along with any applicable responses and objections.

Notwithstanding these objections, Applicant will commence its production in response to the

following Requests to the extent possible. Such production shall not constitute a waiver of any

applicable objection or privilege.

GENERAL OBJECTIONS

1. Applicant objects to the Requests to the extent that it seeks information that may

be protected by the attorney-client privilege, the work-product doctrine or any other privilege.





- 2 -

2. Applicant objects to the Requests to the extent they seek the disclosure of




3. Applicant objects to the Requests to the extent they seek to impose definitions,



4. Applicant objects to the Requests to the extent the Requests’ instructions are

incoherent insofar as they are applicable to interrogatories, and not documents requests.

5. Applicant objects to the Requests to the extent that they are unduly burdensome,

impermissibly vague and/or ambiguous or require unreasonable efforts or expense on the part of

Applicant.

6. Applicant objects to the Requests to the extent they require Applicant to answer

the Requests on behalf of third parties.

7. Applicant objects to the Requests to the extent they require the production of



information that is either publically available or already in the possession, custody or control of

Applicant.

9. Applicant objects to the Requests to the extent that the Requests are vague and/or

ambiguous or contain terms or phrases that are undefined and subject to varying interpretations

or meanings, and may therefore make the responses to the Requests misleading or incorrect.

- 3 -

10. Applicant objects to the Requests as overly broad and unduly burdensome to the

extent that the Requests call for the production of information that is not reasonably accessible.

Specifically, Applicant objects to the Requests to the extent that they seek information that

cannot be located or obtained through reasonable records search.

11. To the extent the Requests or related instructions regarding the logging of





12. Applicant objects to the Requests to the extent they assume disputed facts or


13. Applicant objects to the Responses as overly broad to the extent the Requests seek

“each document” when final document, summary documents or representative sample of

documents will be sufficient to provide Applicant with information it is entitled.

14. Nothing in these objections or responses shall be construed to imply that

Applicant has any documents in its possession, custody or control that are responsive to any of

the Requests or that, to the extent any such document exists or may be produced, it is relevant to

this proceeding.

15. Applicant reserves the right to supplement these responses or objections as may

be permitted by the Federal Rules of Civil Procedure or the Trademark Trial and Appeal Board


16. These general objections are deemed incorporated into each response to each of

the Requests.

- 4 -

17. Applicant reserves the right to withhold certain documents pursuant to entry of a

confidentiality stipulation or agreement between the parties.

REQUESTS FOR PRODUCTION

REQUEST NO. 1.

All Documents used, identified, relied upon, reviewed and/or

referenced in connection with Applicant’s responses to Opposers’ First Set of

Interrogatories.

RESPONSE/OBJECTION:

Subject to the forgoing general objections, Applicant agrees to perform a reasonable

search and produce non-privileged documents responsive to this Request within its possession,

custody, or control to the extent that such documents are relevant to this proceedings.

REQUEST NO. 2.

All Documents used, described, identified, relied upon, reviewed

and/or referenced in connection with Applicant’s Initial Disclosures.

RESPONSE/OBJECTION:




- 5 -

REQUEST NO. 3.

Documents sufficient to evidence Your Document retention and

destruction policy.

RESPONSE/OBJECTION:

No such documents exist.

REQUEST NO. 4.

All Documents that support any allegations and/or affirmative

defenses asserted in Your Answer.

RESPONSE/OBJECTION:

Applicant objects to this Request to the extent that it is overbroad, impermissibly vague

and/or ambiguous to the extent that it refers to “[a]ll documents” concerning “any allegations

and/or affirmative defenses.” Subject to and without waiving these objections, Applicant will

provide responsive, non-privileged documents in its possession, custody or control.

REQUEST NO. 5.

All Documents, including Communications, Concerning Your

consideration, conception, selection and adoption of the Applied-For Mark.

RESPONSE/OBJECTION:


and/or ambiguous to the extent that it refers to “[a]ll documents” concerning “consideration,

conception, selection and adoption of the Applied-For Mark.” Subject to and without waiving

- 6 -

these objections, Applicant will provide responsive, non-privileged documents in its possession

custody or control.

REQUEST NO. 6.

All Documents Concerning any trademark searches or investigations

relating to the Applied-For Mark and/or Opposers’ Marks.

RESPONSE/OBJECTION:


and/or ambiguous to the extent that it refers to “[a]ll documents” concerning “any trademark

searches or investigations relating to the Applied-For Mark and/or Opposers’ Marks”. Further,

Applicant objects to this Request to the extent that it seeks information that may be protected by

the attorney-client privilege, the work-product doctrine or any other privilege. Subject to and

without waiving these objections, Applicant submits that the search for the mark MIXFIT for

personalized nutrition services was conducted, and the result of the search did not include any of

the Opposers’ marks or applications nor did the result identified the Opposers in any way.

REQUEST NO. 7.

All Documents relating to any opinion, legal or otherwise, requested or

received by You Concerning the Applied-For Mark and/or Opposers’ Marks.

RESPONSE/OBJECTION:


and/or ambiguous to the extent that it refers to “[a]ll documents” concerning “any opinion, legal

or otherwise, requested or received”. Further, Applicant objects to this Request to the extent that

- 7 -

it seeks information that may be protected by the attorney-client privilege, the work-product

doctrine or any other privilege. Subject to and without waiving these objections, Applicant

submits that no such documents exist.

REQUEST NO. 8.

Documents sufficient to evidence the Persons who participated in the

creation of the Applied-For Mark and each such Person’s contributions to and

involvement in the creation process.

RESPONSE/OBJECTION:


and/or ambiguous to the extent that it refers to “documents sufficient to evidence” the persons

involved in the creation of the Applied-for mark. Subject to and without waiving these objections,

Applicant refers to the documents produced in connection with the Request 5 to respond to this

Request.

REQUEST NO. 9.

All Documents Concerning, evidencing, or tending to show that the Applied-For

Mark was developed independently of Opposers’ Marks, including without limitation, any

Documents evidencing or tending to show that the Applied-For Mark was developed prior

to Opposers’ Marks, and any documents evidencing pre-existing materials, reference

materials, and/or sources of inspiration.

- 8 -

RESPONSE/OBJECTION:


and/or ambiguous to the extent that it refers to “[a]ll documents” to show independent

development of Applied-for mark prior to Opposers’ Mark. Applicant further objects to the

extent it seek the disclosure of information that is irrelevant to the present proceeding in that it

does not pertain to the claims and issues of the proceeding nor reasonably calculated to lead to

the discovery of admissible evidence. Subject to and without waiving these objections, Applicant

refers to the documents produced in connection with the Request 5 to respond to this Request.

Applicant also submits that the Applicant (Mixfit, Inc.) was incorporated in December 16, 2015

thereby the term “MIXFIT” was used as early as December 16, 2015 in connection with

Applicant.

REQUEST NO. 10.

All Documents concerning, evidencing, or tending to show prior iterations,

alternatives, drafts, mockups, conceptual renderings, drawings, and preliminary sketches

of the Applied-For Mark.

RESPONSE/OBJECTION:


and/or ambiguous to the extent that it refers to “[a]ll documents” concerning prior iterations of

the Applied-for Mark. Subject to and without waiving these objections, Applicant refers to the

documents produced in connection with the Request 5 to respond to this Request.

- 9 -

REQUEST NO. 11.

All Documents Concerning Your consideration of any alternate Marks (either

instead of, or in addition to, the Applied-For Mark) for use in connection with Applicant’s

Products.

RESPONSE/OBJECTION:


and/or ambiguous to the extent that it refers to “[a]ll documents” concerning any alternate marks.

Subject to and without waiving these objections, Applicant submits that no such documents exist.

REQUEST NO. 12.

All Documents concerning any preparations to use the Applied-For Mark in U.S.

commerce, including, without limitation, any business plans, pitches, or proposals to

potential business partners, investors, advertisers, or customers.

RESPONSE/OBJECTION:


and/or ambiguous to the extent that it refers to “[a]ll documents concerning any preparations” to

use the Applied-for Mark in the U.S. commerce. Applicant further objects to the extent it seek

the disclosure of information that embodies, reflects or relates to trade secrets or other

confidential research, development, or commercial information that is irrelevant to the present

proceeding in that it does not pertain to the claims and issues of the proceeding nor reasonably

calculated to lead to the discovery of admissible evidence. Subject to and without waiving these

objections, Applicant will provide responsive, non-privileged documents in its possession,

custody or control.

- 10 -

REQUEST NO. 13.

All Documents concerning any agreement, contract, or license You have entered into

with any Person relating to the Applied-For Mark.

RESPONSE/OBJECTION:


and/or ambiguous to the extent that it refers to “[a]ll documents concerning any agreements”

relating to use the Applied-for Mark. Applicant further objects to the extent it seek the

disclosure of information that embodies, reflects or relates to trade secrets or other confidential

research, development, or commercial information that is irrelevant to the present proceeding in

that it does not pertain to the claims and issues of the proceeding nor reasonably calculated to

lead to the discovery of admissible evidence.

REQUEST NO. 14.

All Documents concerning Your decision to attempt to register the Applied-For

Mark with the U.S. Patent and Trademark Office.

RESPONSE/OBJECTION:


and/or ambiguous to the extent that it refers to “[a]ll documents concerning” a decision to

register the Applied-for Mark. Applicant further objects to this Request to the extent that it

seeks information that may be protected by the attorney-client privilege, the work-product

doctrine or any other privilege. Subject to the forgoing objections, Applicant submits that the

- 11 -

filing of the application with the U.S. Patent and Trademark Office for Applied-for Mark

supports the conclusion that the decision was in fact made by Applicant in good faith.

REQUEST NO. 15.

Documents sufficient to evidence Your first use in commerce of the Applied-For

Mark in connection with each of the goods and services identified in the Application.

RESPONSE/OBJECTION:


and/or ambiguous to the extent that it refers to documents “sufficient to evidence” the first use

of the Applied-for mark in commerce. Further, Opposers objects to this Request to the extent it

calls for assumption of legal conclusions when defining the sufficiency of information requested.

Subject to and without waiving these objections, Applicant will provide responsive, non-

privileged documents in its possession custody or control.

REQUEST NO. 16.

Documents sufficient to evidence Your first use in U.S. commerce of the Applied-

For Mark in connection with each of the goods and services identified in the Application.

RESPONSE/OBJECTION:





- 12 -

Subject to and without waiving these objections, Applicant refers to documents produced in


REQUEST NO. 17.

Specimens of every usage of the Applied-For Mark in U.S. commerce, including,

without limitation, usage on or in connection with Applicant’s Products, usage on or in

connection with product labeling or packaging, and usage in advertising, marketing, and

promotional materials.

RESPONSE/OBJECTION:

Applicant objects to this Request as it is overbroad, impermissibly vague and/or

ambiguous to the extent that it is overbroad, impermissibly vague and/or ambiguous to the

extent that it refers to specimens of “every usage” of the Applied-for Mark. Subject to and

without waiving these objections, Applicant refers to documents produced in response to

Request 15. Subject to and without waiving these objections, Applicant will provide responsive,

non-privileged documents in its possession, custody or control.

REQUEST NO. 18.

All Documents Concerning any proposed artwork You considered for use in

connection with the advertising, marketing, and/or promotion of Applicant’s Products,

including such proposed artwork.

- 13 -

RESPONSE/OBJECTION:


ambiguous to the extent that it refers to “[a]ll documents” concerning “any” proposed artwork

for use in connection with promotion of Applicant’s Product. Subject to and without waiving

these objections, Applicant refers the Opposers to documents provided in response to Request

NO.: 5.

REQUEST NO. 19.

All Documents concerning Opposers or Opposers’ Marks.

RESPONSE/OBJECTION:


ambiguous to the extent that it refers to “[a]ll documents” concerning the Opposers or

Opposers’ Mark. Applicant further objects to this Request to the extent that it seeks information

that may be protected by the attorney-client privilege, the work-product doctrine or any other

privilege. Subject to and without waiving these objections, Applicant submits that no such

documents exist that are created or developed prior to the initiation date of these proceedings by

the Opposers.

REQUEST NO. 20.

All Documents Concerning Your first awareness of Opposers.

RESPONSE/OBJECTION:


ambiguous to the extent that it refers to “[a]ll documents” concerning the first awareness of

- 14 -

Opposers. Applicant further objects to the extent it seek the disclosure of information that is

irrelevant to the present proceeding in that it does not pertain to the claims and issues of the

proceeding nor reasonably calculated to lead to the discovery of admissible evidence. Subject to

and without waiving these objections, Applicant submits that no such documents exist.

REQUEST NO. 21.

All Documents Concerning Your first awareness of Opposers’ Marks.

RESPONSE/OBJECTION:



Opposers’ Mark. Applicant further objects to the extent it seek the disclosure of information

that is irrelevant to the present proceeding in that it does not pertain to the claims and issues of

the proceeding nor reasonably calculated to lead to the discovery of admissible evidence.

Subject to and without waiving these objections, Applicant submits that no such documents

exist.

REQUEST NO. 22.

All Documents concerning Your first awareness of any products offered by

Opposers in connection with any of Opposers’ Marks.

RESPONSE/OBJECTION:


ambiguous to the extent that it refers to “[a]ll documents” concerning the first awareness of any

- 15 -

Opposers’s products. Applicant further objects to the extent it seek the disclosure of

information that is irrelevant to the present proceeding in that it does not pertain to the claims

and issues of the proceeding nor reasonably calculated to lead to the discovery of admissible

evidence. Subject to and without waiving these objections, Applicant submits that no such

documents exist.

REQUEST NO. 23.

All Documents Concerning communications between You and Opposers, or any

current or former employee or agent of Opposers, Concerning the Applied-For Mark

and/or Opposers’ Marks.

RESPONSE/OBJECTION:


ambiguous to the extent that it refers to “[a]ll documents” concerning communications between

Applicant and Opposers. Applicant further objects to the extent it seek the disclosure of




documents exist.

REQUEST NO. 24.

All Documents, including Communications, Concerning any instance in which one of

Your customers inquired whether, or otherwise indicated the mistaken belief that, You or

- 16 -

any of Your goods or services were affiliated with, sponsored by, or approved by,

Opposers.

RESPONSE/OBJECTION:


ambiguous to the extent that it refers to “[a]ll documents” concerning instances of the

mistaken belief that Applicant’s goods and services were affiliated or sponsored by the

Opposers. Subject to and without waiving these objections, Applicant submits that no such

documents exist and refers to the response to Interrogatory No.: 8.

REQUEST NO. 25.

All Documents, including Communications, Concerning any instances of actual

confusion, mistake, deception, or association of any kind between, on the one hand,

Applicant or any of Applicant’s Products, and on the other hand, Opposers or any of

Opposers’ goods or services.

RESPONSE/OBJECTION:

Applicant objects to this Request to the extent that it refers to “[a]ll documents”

concerning instances of actual confusion. Subject to and without waiving these objections,

Applicant submits that no such documents exist and refers to the response to Interrogatory No.:

8.

- 17 -

REQUEST NO. 26.

All Documents concerning, describing, or identifying Your target market for each

of the goods and services You offer or intend to offer in connection with the Applied-For

Mark.

RESPONSE/OBJECTION:


ambiguous to the extent that it refers to “[a]ll documents” concerning Applicant’s target market.

Applicant further objects to the extent it seek the disclosure of information that embodies,

reflects or relates to trade secrets or other confidential research, development, or commercial

information. Subject to and without waiving these objections, Applicant submits that no such


REQUEST NO. 27.

Documents sufficient to evidence the demographics of Your customers or intended

customers.

RESPONSE/OBJECTION:


and/or ambiguous to the extent that it refers to documents “sufficient to evidence” the

demographics of Applicant’s customers. Applicant further objects to the extent it seek the


research, development, or commercial information.

- 18 -

REQUEST NO. 28.

Documents sufficient to evidence the channels in which You market or advertise, or

intend to market or advertise, each of the goods and services You offer or intend to offer

in connection with the Applied-For Mark.

RESPONSE/OBJECTION:


and/or ambiguous to the extent that it refers to documents “sufficient to evidence” the channels

in which Applicant markets or advertises, or intend to market or advertise, each of the goods

and services. Applicant further objects to the extent it seek the disclosure of information that

embodies, reflects or relates to trade secrets or other confidential research, development, or

commercial information. Subject to and without waiving these objections, Applicant refers

Opposers to the response to Interrogatory No.: 10.

REQUEST NO. 29.

Documents sufficient to evidence the channels in which You sell or distribute, or

intend to sell or distribute, each of the goods and services You offer or intend to offer in

connection with the Applied-For Mark.

RESPONSE/OBJECTION:



in which Applicant sells or distributes, or intend to sell or distribute, each of the goods and

services. Applicant further objects to the extent it seek the disclosure of information that

- 19 -




REQUEST NO. 30.

Documents sufficient to evidence the price range in which You sell, or intend to sell,

each of the goods and services You offer or intend to offer in connection with the Applied-

For Mark.

RESPONSE/OBJECTION:


and/or ambiguous to the extent that it refers to documents “sufficient to evidence” the price

range of each of Applicant’s goods and services. Applicant further objects to the extent it seek


confidential research, development, or commercial information. Subject to and without waiving

these objections, Applicant will provide responsive, non-privileged documents in its possession,

custody or control and refers to the response to Interrogatory No.: 11.

REQUEST NO. 31.

All Documents Concerning any plans You have to expand Your goods and services

offered in connection with the Applied-For Mark.

- 20 -

RESPONSE/OBJECTION:


ambiguous to the extent that it refers to “[a]ll documents” concerning “any” plans Applicant

has to its offerings. Applicant further objects to the extent it seek the disclosure of information

that embodies, reflects or relates to trade secrets or other confidential research, development, or



REQUEST NO. 32.

All Documents Concerning any business plans, forecasts, or projections Relating To

Applicant’s Products.

RESPONSE/OBJECTION:


ambiguous to the extent that it refers to “[a]ll documents” concerning “any” plans relating to

Applicant’s Products. Applicant further objects to the extent it seek the disclosure of


development, or commercial information.

REQUEST NO. 33.

All Documents Concerning any marketing research, studies, data analysis, focus

group studies, polls, or surveys conducted by You or on Your behalf Relating To the

- 21 -

Applied- For Mark, Applicant’s Products, and/or purchasers or prospective purchasers of


RESPONSE/OBJECTION:


ambiguous to the extent that it refers to “[a]ll documents” concerning “any” any marketing

research, and etc. Applicant further objects to the extent it seek the disclosure of information


commercial information.

REQUEST NO. 34.

All Documents Concerning this Opposition.

RESPONSE/OBJECTION:


ambiguous to the extent that it refers to “[a]ll documents” concerning this Opposition.

Applicant further objects to this Request to the extent that it seeks information that may be

protected by the attorney-client privilege, the work-product doctrine or any other privilege.

Subject to and without waiving these objections, Applicant submits that the Opposers are in

possession of all responsive, non-privileged documents that are responsive to this Request.

- 22 -

REQUEST NO. 35.

All Documents, including Communications, exchanged between You and any past,

present, or anticipated business partners or investors Relating To the goods and services

in connection with which You use, have used, or intend to use the Applied-For Mark.

RESPONSE/OBJECTION:


ambiguous to the extent that it refers to “[a]ll documents” relating to Communications,

exchanged between Applicant and any past, present, or anticipated business partners or

investors. Applicant further objects to the extent it seek the disclosure of information that


commercial information that is irrelevant to the present proceeding in that it does not pertain to

the claims and issues of the proceeding nor reasonably calculated to lead to the discovery of


REQUEST NO. 36.

Documents sufficient to show the name, job title, and job description of every

Person that was or is involved in the development, design, marketing, and/or distribution

of any goods or services offered in connection with the Applied-For Mark.

- 23 -

RESPONSE/OBJECTION:


and/or ambiguous to the extent that it refers to documents “sufficient to show” the name, job

title, and job description of every person that was or is involved in the marketing of “any”

goods or services offered in connection with the Applied-For Mark. Applicant further objects to

the extent it seek the disclosure of information that embodies, reflects or relates to trade secrets

or other confidential research, development, or commercial information. Subject to and without

waiving these objections, Applicant refers the Opposers to the response to Interrogatory No.: 1

and Applicant’s Initial Disclosures.

REQUEST NO. 37.

All Documents Concerning the advertising, promotion, marketing, production,

transportation, sale, or distribution of Applicant’s Products in connection with which You

have used the Applied-For Mark.

RESPONSE/OBJECTION:


ambiguous to the extent that it refers to “[a]ll documents” concerning the advertising,

promotion, marketing, production, transportation, sale, or distribution of Applicant’s Products.

Applicant further objects to the extent it seek the disclosure of information that embodies,


information. Subject to and without waiving these objections, Applicant refers the Opposers to

the responses for Requests Nos.: 25 to 29.

- 24 -

REQUEST NO. 38.

Documents sufficient to summarize, describe, evidence, or otherwise demonstrate

the exact nature of each product and service in connection with which You have used the

Applied-For Mark.

RESPONSE/OBJECTION:


and/or ambiguous to the extent that it refers to documents “sufficient to summarize” the “exact

nature’ of each product. Applicant further objects to the extent it seek the disclosure of


development, or commercial information. Subject to and without waiving these objections,

Applicant will provide responsive, non-privileged documents in its possession, custody or

control.

REQUEST NO. 39.

Documents sufficient to evidence the total past, current, and projected future

annual sales, by volume and dollar amount (in terms of revenue, gross profits, and net

profits), for each of Applicant’s Products.

RESPONSE/OBJECTION:


and/or ambiguous to the extent that it refers to documents “sufficient to evidence” total past,

current, and projected future annual sales. Applicant further objects to the extent it seek the


- 25 -




REQUEST NO. 40.

All Documents that record, summarize, or otherwise refer to monthly, quarterly,

and annual sales of each of Applicant’s Products.

RESPONSE/OBJECTION:


ambiguous to the extent that it refers to “[a]ll documents” that record, summarize, or otherwise

refer to monthly, quarterly, and annual sales of each of Applicant’s Products. Applicant further

objects to the extent it seek the disclosure of information that embodies, reflects or relates to

trade secrets or other confidential research, development, or commercial information that is


proceeding nor reasonably calculated to lead to the discovery of admissible evidence.

REQUEST NO. 41.

Documents sufficient to evidence Applicant’s past, current, and planned future

annual expenditures on efforts to advertise, market, or otherwise promote, through any

form of media, any of Applicant’s Products.

- 26 -

RESPONSE/OBJECTION:


and/or ambiguous to the extent that it refers to documents “sufficient to evidence” Applicant’s

past, current, and planned future annual expenditures relating to advertisement of Applicant’s

goods and services. Applicant further objects to the extent it seek the disclosure of information





REQUEST NO. 42.

All Documents Concerning proposals for, preparation or selection of advertisements

or promotions that use the Applied-For Mark.

RESPONSE/OBJECTION:


ambiguous to the extent that it refers to “[a]ll documents” concerning preparation of

advertisements that use the Applied-for Mark. Applicant further objects to the extent it seek the




lead to the discovery of admissible evidence. Subject to and without waiving these objections,

- 27 -


control.

REQUEST NO. 43.

All Documents Concerning any marketing, advertising, or promotional activities

You have done or plan to do that uses the Applied-For Mark, including, without

limitation, Documents showing the cost, scope, and channels of such activities, as well as

any Communications Relating To the development and design of such activities.

RESPONSE/OBJECTION:


ambiguous to the extent that it refers to “[a]ll documents” concerning marketing, advertising, or

promotional activities of Applicant. Applicant further objects to the extent it seek the disclosure

of information that embodies, reflects or relates to trade secrets or other confidential research,

development, or commercial information that is irrelevant to the present proceeding in that it


the discovery of admissible evidence. Subject to and without waiving these objections,


control.

- 28 -

REQUEST NO. 44.

Documents sufficient to evidence all website and webpages (including, without

limitation, social media pages) on which You use, have used, or intend to use the Applied-

For Mark, including images of such websites and webpages.

RESPONSE/OBJECTION:


and/or ambiguous to the extent that it refers to documents “sufficient to evidence” all website

and webpages of Applicant. Subject to and without waiving these objections, Applicant will


REQUEST NO. 45.

All Documents Concerning any litigation or administrative proceeding Relating To

the Applied-For Mark and/or any of Applicant’s Products.

RESPONSE/OBJECTION:


ambiguous the extent that it refers to “[a]ll documents” concerning any litigation or

administrative proceeding relating To the Applied-For Mark and/or any of Applicant’s Products.

Subject to and without waiving these objections, Applicant submits that no such document

exists.

- 29 -

REQUEST NO. 46.

All Documents Concerning any complaints, protests, objections, demands, threats,

or other claims to or from You Relating To the Applied-For Mark and/or any of


RESPONSE/OBJECTION:


ambiguous to the extent that it refers to “[a]ll documents” concerning “any” complaints,

protests, objections, demands, threats, or other claims to or from You Relating To the Applied-

For Mark and/or any of Applicant’s Products. Subject to and without waiving these objections,

as this Request best understood by Applicant, Applicant submits that no such documents exist.

REQUEST NO. 47.

All Documents Concerning any accusation of trademark infringement made by or

against You in the past ten (10) years.

RESPONSE/OBJECTION:


ambiguous to the extent that it refers to “[a]ll documents” concerning any accusation of

trademark infringement made by or against Applicant in the past ten (10) years. Subject to and

without waiving these objections, Applicant submits that no such documents exist.

- 30 -

REQUEST NO. 48.

All Documents Relating To the retention or possible retention of expert witnesses

for Your use in connection with this Opposition.

RESPONSE/OBJECTION:


REQUEST NO. 49.

All Documents Relating To the opinion of any experts (including counsel) consulted

or retained by You in connection with this Opposition.

RESPONSE/OBJECTION:


ambiguous to the extent that it refers to “[a]ll documents” relating to the opinion of counsel

regarding this Opposition. Applicant further objects to this Request to the extent that it seeks

information that may be protected by the attorney-client privilege, the work-product doctrine or

any other privilege. Subject to and without waiving these objections, Applicant submits that no

such documents exist.

REQUEST NO. 50.

Copies of any and all statements or opinions of any Person rendering advice to You

Relating To this Opposition, Opposers, Opposers’ Marks, and/or the Applied-For Mark.

- 31 -

Applicant objects to this Request to the extent that it seeks information that may be


REQUEST NO. 51.

All Documents which You intend to rely upon or may rely upon in this Opposition.

RESPONSE/OBJECTION:


and/or ambiguous to the extent that it refers to “[a]ll documents”, which Applicant intends to rely

on in this Opposition. Subject to and without waiving these objections, Applicant will provide

responsive, non-privileged documents in its possession, custody or control that have not been

provided in response to any of the previous Requests.


MIXFIT INC.

/Leo V. Gureff/

By:

Leo V. Gureff


P.C. (MG-IP)


Fairfax, VA 22033

Phone: 703.621.7140 ext. 146

Email: [email protected]

Date: August 26, 2020

LVG/

- 32 -


I hereby certify that a true copy of the foregoing APPLICANT’S RESPONSE TO

OPPOSERS’ FIRST SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS AND

THIINGS was served on counsel for Opposers, this 26 day of August, 2020, via email



FERDINAND IP, LLC

1221 POST ROAD EAST

WESTPORT, CT 06880

UNITED STATES

/Leo V. Gureff/

__________________________________________

Leo V. Gureff


EXHIBIT 6


91254501





)

Myx Fitness LLC; Palm Ventures, LLC

)

)

Opposers, )

)

v. )

)

Mixfit Inc., )

)

)

Applicant. )

)



APPLICANT’S SUPPLEMENTAL RESPONSE TO OPPOSERS’ FIRST SET OF

REQUESTS FOR PRODUCTION OF DOCUMENTS AND THIINGS

Applicant, Mixfit, Inc. (“Applicant”), hereby serves the below supplemental responses

and objections to Opposers, MYX Fitness and Palm Ventures, LLC. (together, “Opposers’”)

First Request for Production of Documents and Things (“Requests”).

Each Request is restated below, along with any applicable responses and objections.

Notwithstanding these objections, Applicant will commence its production in response to the

following Requests to the extent possible. Such production shall not constitute a waiver of any

applicable objection or privilege.

GENERAL OBJECTIONS

1. Applicant objects to the Requests to the extent that it seeks information that may

be protected by the attorney-client privilege, the work-product doctrine or any other privilege.





- 2 -

2. Applicant objects to the Requests to the extent they seek the disclosure of




3. Applicant objects to the Requests to the extent they seek to impose definitions,



4. Applicant objects to the Requests to the extent the Requests’ instructions are

incoherent insofar as they are applicable to interrogatories, and not documents requests.

5. Applicant objects to the Requests to the extent that they are unduly burdensome,

impermissibly vague and/or ambiguous or require unreasonable efforts or expense on the part of

Applicant.

6. Applicant objects to the Requests to the extent they require Applicant to answer

the Requests on behalf of third parties.




information that is either publically available or already in the possession, custody or control of

Applicant.

9. Applicant objects to the Requests to the extent that the Requests are vague and/or

ambiguous or contain terms or phrases that are undefined and subject to varying interpretations

or meanings, and may therefore make the responses to the Requests misleading or incorrect.

- 3 -

10. Applicant objects to the Requests as overly broad and unduly burdensome to the

extent that the Requests call for the production of information that is not reasonably accessible.

Specifically, Applicant objects to the Requests to the extent that they seek information that

cannot be located or obtained through reasonable records search.

11. To the extent the Requests or related instructions regarding the logging of





12. Applicant objects to the Requests to the extent they assume disputed facts or


13. Applicant objects to the Responses as overly broad to the extent the Requests seek

“each document” when final document, summary documents or representative sample of

documents will be sufficient to provide Applicant with information it is entitled.

14. Nothing in these objections or responses shall be construed to imply that

Applicant has any documents in its possession, custody or control that are responsive to any of

the Requests or that, to the extent any such document exists or may be produced, it is relevant to

this proceeding.

15. Applicant reserves the right to supplement these responses or objections as may

be permitted by the Federal Rules of Civil Procedure or the Trademark Trial and Appeal Board


16. These general objections are deemed incorporated into each response to each of

the Requests.

- 4 -

17. Applicant reserves the right to withhold certain documents pursuant to entry of a

confidentiality stipulation or agreement between the parties.

REQUESTS FOR PRODUCTION

REQUEST NO. 1.

All Documents used, identified, relied upon, reviewed and/or

referenced in connection with Applicant’s responses to Opposers’ First Set of

Interrogatories.

RESPONSE/OBJECTION:




REQUEST NO. 2.

All Documents used, described, identified, relied upon, reviewed

and/or referenced in connection with Applicant’s Initial Disclosures.

RESPONSE/OBJECTION:




- 5 -

REQUEST NO. 3.

Documents sufficient to evidence Your Document retention and

destruction policy.

RESPONSE/OBJECTION:


REQUEST NO. 4.

All Documents that support any allegations and/or affirmative

defenses asserted in Your Answer.

RESPONSE/OBJECTION:


and/or ambiguous to the extent that it refers to “[a]ll documents” concerning “any allegations

and/or affirmative defenses.” Subject to and without waiving these objections, Applicant will


REQUEST NO. 5.

All Documents, including Communications, Concerning Your

consideration, conception, selection and adoption of the Applied-For Mark.

RESPONSE/OBJECTION:


and/or ambiguous to the extent that it refers to “[a]ll documents” concerning “consideration,

conception, selection and adoption of the Applied-For Mark.” Subject to and without waiving

- 6 -

these objections, Applicant will provide responsive, non-privileged documents in its possession

custody or control.

SUPPLEMENTAL RESPONSE: Without waiver of the forgoing objections, Applicant

will produce additional documents, if any, based on reasonable search of Applicant’s records.

REQUEST NO. 6.

All Documents Concerning any trademark searches or investigations

relating to the Applied-For Mark and/or Opposers’ Marks.

RESPONSE/OBJECTION:


and/or ambiguous to the extent that it refers to “[a]ll documents” concerning “any trademark

searches or investigations relating to the Applied-For Mark and/or Opposers’ Marks”. Further,

Applicant objects to this Request to the extent that it seeks information that may be protected by

the attorney-client privilege, the work-product doctrine or any other privilege. Subject to and

without waiving these objections, Applicant submits that the search for the mark MIXFIT for

personalized nutrition services was conducted, and the result of the search did not include any of

the Opposers’ marks or applications nor did the result identified the Opposers in any way.

REQUEST NO. 7.

All Documents relating to any opinion, legal or otherwise, requested or

received by You Concerning the Applied-For Mark and/or Opposers’ Marks.

RESPONSE/OBJECTION:

- 7 -


and/or ambiguous to the extent that it refers to “[a]ll documents” concerning “any opinion, legal

or otherwise, requested or received”. Further, Applicant objects to this Request to the extent that

it seeks information that may be protected by the attorney-client privilege, the work-product

doctrine or any other privilege. Subject to and without waiving these objections, Applicant

submits that no such documents exist.

REQUEST NO. 8.

Documents sufficient to evidence the Persons who participated in the

creation of the Applied-For Mark and each such Person’s contributions to and

involvement in the creation process.

RESPONSE/OBJECTION:


and/or ambiguous to the extent that it refers to “documents sufficient to evidence” the persons

involved in the creation of the Applied-for mark. Subject to and without waiving these objections,

Applicant refers to the documents produced in connection with the Request 5 to respond to this

Request.



REQUEST NO. 9.

All Documents Concerning, evidencing, or tending to show that the Applied-For

Mark was developed independently of Opposers’ Marks, including without limitation, any

- 8 -

Documents evidencing or tending to show that the Applied-For Mark was developed prior

to Opposers’ Marks, and any documents evidencing pre-existing materials, reference

materials, and/or sources of inspiration.

RESPONSE/OBJECTION:


and/or ambiguous to the extent that it refers to “[a]ll documents” to show independent

development of Applied-for mark prior to Opposers’ Mark. Applicant further objects to the

extent it seek the disclosure of information that is irrelevant to the present proceeding in that it


the discovery of admissible evidence. Subject to and without waiving these objections, Applicant

refers to the documents produced in connection with the Request 5 to respond to this Request.

Applicant also submits that the Applicant (Mixfit, Inc.) was incorporated in December 16, 2015

thereby the term “MIXFIT” was used as early as December 16, 2015 in connection with

Applicant.



REQUEST NO. 10.

All Documents concerning, evidencing, or tending to show prior iterations,

alternatives, drafts, mockups, conceptual renderings, drawings, and preliminary sketches

of the Applied-For Mark.

RESPONSE/OBJECTION:

- 9 -


and/or ambiguous to the extent that it refers to “[a]ll documents” concerning prior iterations of

the Applied-for Mark. Subject to and without waiving these objections, Applicant refers to the

documents produced in connection with the Request 5 to respond to this Request.



REQUEST NO. 11.

All Documents Concerning Your consideration of any alternate Marks (either

instead of, or in addition to, the Applied-For Mark) for use in connection with Applicant’s

Products.

RESPONSE/OBJECTION:


and/or ambiguous to the extent that it refers to “[a]ll documents” concerning any alternate marks.

Subject to and without waiving these objections, Applicant submits that no such documents exist.

REQUEST NO. 12.

All Documents concerning any preparations to use the Applied-For Mark in U.S.

commerce, including, without limitation, any business plans, pitches, or proposals to

potential business partners, investors, advertisers, or customers.

RESPONSE/OBJECTION:

- 10 -


and/or ambiguous to the extent that it refers to “[a]ll documents concerning any preparations” to

use the Applied-for Mark in the U.S. commerce. Applicant further objects to the extent it seeks






custody or control.

REQUEST NO. 13.

All Documents concerning any agreement, contract, or license You have entered into

with any Person relating to the Applied-For Mark.

RESPONSE/OBJECTION:


and/or ambiguous to the extent that it refers to “[a]ll documents concerning any agreements”

relating to use the Applied-for Mark. Applicant further objects to the extent it seeks the





- 11 -

REQUEST NO. 14.

All Documents concerning Your decision to attempt to register the Applied-For

Mark with the U.S. Patent and Trademark Office.

RESPONSE/OBJECTION:


and/or ambiguous to the extent that it refers to “[a]ll documents concerning” a decision to

register the Applied-for Mark. Applicant further objects to this Request to the extent that it

seeks information that may be protected by the attorney-client privilege, the work-product

doctrine or any other privilege. Subject to the forgoing objections, Applicant submits that the

filing of the application with the U.S. Patent and Trademark Office for Applied-for Mark

supports the conclusion that the decision was in fact made by Applicant in good faith.

REQUEST NO. 15.

Documents sufficient to evidence Your first use in commerce of the Applied-For

Mark in connection with each of the goods and services identified in the Application.

RESPONSE/OBJECTION:





Subject to and without waiving these objections, Applicant will provide responsive, non-

privileged documents in its possession custody or control.

- 12 -



More specifically, Applicant intends to produce sale receipts for the first sale of Applicant’s

products in the U.S.

REQUEST NO. 16.

Documents sufficient to evidence Your first use in U.S. commerce of the Applied-

For Mark in connection with each of the goods and services identified in the Application.

RESPONSE/OBJECTION:





Subject to and without waiving these objections, Applicant refers to documents produced in


REQUEST NO. 17.

Specimens of every usage of the Applied-For Mark in U.S. commerce, including,

without limitation, usage on or in connection with Applicant’s Products, usage on or in

connection with product labeling or packaging, and usage in advertising, marketing, and

promotional materials.

RESPONSE/OBJECTION:

- 13 -


ambiguous to the extent that it is overbroad, impermissibly vague and/or ambiguous to the

extent that it refers to specimens of “every usage” of the Applied-for Mark. Subject to and

without waiving these objections, Applicant refers to documents produced in response to

Request 15. Subject to and without waiving these objections, Applicant will provide responsive,

non-privileged documents in its possession, custody or control.

REQUEST NO. 18.

All Documents Concerning any proposed artwork You considered for use in

connection with the advertising, marketing, and/or promotion of Applicant’s Products,

including such proposed artwork.

RESPONSE/OBJECTION:


ambiguous to the extent that it refers to “[a]ll documents” concerning “any” proposed artwork

for use in connection with promotion of Applicant’s Product. Subject to and without waiving

these objections, Applicant refers the Opposers to documents provided in response to Request

NO.: 5.

REQUEST NO. 19.

All Documents concerning Opposers or Opposers’ Marks.

RESPONSE/OBJECTION:

- 14 -


ambiguous to the extent that it refers to “[a]ll documents” concerning the Opposers or

Opposers’ Mark. Applicant further objects to this Request to the extent that it seeks information

that may be protected by the attorney-client privilege, the work-product doctrine or any other

privilege. Subject to and without waiving these objections, Applicant submits that no such

documents exist that are created or developed prior to the initiation date of these proceedings by

the Opposers.

REQUEST NO. 20.

All Documents Concerning Your first awareness of Opposers.

RESPONSE/OBJECTION:



Opposers. Applicant further objects to the extent it seeks the disclosure of information that is


proceeding nor reasonably calculated to lead to the discovery of admissible evidence. Subject to

and without waiving these objections, Applicant submits that no such documents exist.

REQUEST NO. 21.

All Documents Concerning Your first awareness of Opposers’ Marks.

RESPONSE/OBJECTION:

- 15 -



Opposers’ Mark. Applicant further objects to the extent it seeks the disclosure of information

that is irrelevant to the present proceeding in that it does not pertain to the claims and issues of

the proceeding nor reasonably calculated to lead to the discovery of admissible evidence.

Subject to and without waiving these objections, Applicant submits that no such documents

exist.

REQUEST NO. 22.

All Documents concerning Your first awareness of any products offered by

Opposers in connection with any of Opposers’ Marks.

RESPONSE/OBJECTION:


ambiguous to the extent that it refers to “[a]ll documents” concerning the first awareness of any

Opposer’s products. Applicant further objects to the extent it seeks the disclosure of




documents exist.

- 16 -

REQUEST NO. 23.

All Documents Concerning communications between You and Opposers, or any

current or former employee or agent of Opposers, Concerning the Applied-For Mark

and/or Opposers’ Marks.

RESPONSE/OBJECTION:


ambiguous to the extent that it refers to “[a]ll documents” concerning communications between

Applicant and Opposers. Applicant further objects to the extent it seeks the disclosure of




documents exist.

REQUEST NO. 24.

All Documents, including Communications, Concerning any instance in which one of

Your customers inquired whether, or otherwise indicated the mistaken belief that, You or

any of Your goods or services were affiliated with, sponsored by, or approved by,

Opposers.

RESPONSE/OBJECTION:


ambiguous to the extent that it refers to “[a]ll documents” concerning instances of the

mistaken belief that Applicant’s goods and services were affiliated or sponsored by the

- 17 -

Opposers. Subject to and without waiving these objections, Applicant submits that no such


REQUEST NO. 25.

All Documents, including Communications, Concerning any instances of actual

confusion, mistake, deception, or association of any kind between, on the one hand,

Applicant or any of Applicant’s Products, and on the other hand, Opposers or any of

Opposers’ goods or services.

RESPONSE/OBJECTION:

Applicant objects to this Request to the extent that it refers to “[a]ll documents”

concerning instances of actual confusion. Subject to and without waiving these objections,

Applicant submits that no such documents exist and refers to the response to Interrogatory No.:

8.

REQUEST NO. 26.

All Documents concerning, describing, or identifying Your target market for each

of the goods and services You offer or intend to offer in connection with the Applied-For

Mark.

RESPONSE/OBJECTION:


ambiguous to the extent that it refers to “[a]ll documents” concerning Applicant’s target market.

Applicant further objects to the extent it seeks the disclosure of information that embodies,

- 18 -


information. Subject to and without waiving these objections, Applicant submits that no such




REQUEST NO. 27.

Documents sufficient to evidence the demographics of Your customers or intended

customers.

RESPONSE/OBJECTION:


and/or ambiguous to the extent that it refers to documents “sufficient to evidence” the

demographics of Applicant’s customers. Applicant further objects to the extent it seeks the


research, development, or commercial information.



REQUEST NO. 28.

Documents sufficient to evidence the channels in which You market or advertise, or

intend to market or advertise, each of the goods and services You offer or intend to offer

in connection with the Applied-For Mark.

- 19 -

RESPONSE/OBJECTION:



in which Applicant markets or advertises, or intend to market or advertise, each of the goods

and services. Applicant further objects to the extent it seeks the disclosure of information that






REQUEST NO. 29.

Documents sufficient to evidence the channels in which You sell or distribute, or

intend to sell or distribute, each of the goods and services You offer or intend to offer in

connection with the Applied-For Mark.

RESPONSE/OBJECTION:



in which Applicant sells or distributes, or intend to sell or distribute, each of the goods and

services. Applicant further objects to the extent it seeks the disclosure of information that




- 20 -



REQUEST NO. 30.

Documents sufficient to evidence the price range in which You sell, or intend to sell,

each of the goods and services You offer or intend to offer in connection with the Applied-

For Mark.

RESPONSE/OBJECTION:


and/or ambiguous to the extent that it refers to documents “sufficient to evidence” the price

range of each of Applicant’s goods and services. Applicant further objects to the extent it seeks


confidential research, development, or commercial information. Subject to and without waiving

these objections, Applicant will provide responsive, non-privileged documents in its possession,

custody or control and refers to the response to Interrogatory No.: 11.

REQUEST NO. 31.

All Documents Concerning any plans You have to expand Your goods and services

offered in connection with the Applied-For Mark.

- 21 -

RESPONSE/OBJECTION:


ambiguous to the extent that it refers to “[a]ll documents” concerning “any” plans Applicant

has to its offerings. Applicant further objects to the extent it seeks the disclosure of information




REQUEST NO. 32.

All Documents Concerning any business plans, forecasts, or projections Relating To


RESPONSE/OBJECTION:


ambiguous to the extent that it refers to “[a]ll documents” concerning “any” plans relating to

Applicant’s Products. Applicant further objects to the extent it seeks the disclosure of


development, or commercial information.

REQUEST NO. 33.

All Documents Concerning any marketing research, studies, data analysis, focus

group studies, polls, or surveys conducted by You or on Your behalf Relating To the

- 22 -

Applied- For Mark, Applicant’s Products, and/or purchasers or prospective purchasers of


RESPONSE/OBJECTION:


ambiguous to the extent that it refers to “[a]ll documents” concerning “any” any marketing

research, and etc. Applicant further objects to the extent it seeks the disclosure of information


commercial information.



REQUEST NO. 34.

All Documents Concerning this Opposition.

RESPONSE/OBJECTION:


ambiguous to the extent that it refers to “[a]ll documents” concerning this Opposition.

Applicant further objects to this Request to the extent that it seeks information that may be


Subject to and without waiving these objections, Applicant submits that the Opposers are in

possession of all responsive, non-privileged documents that are responsive to this Request.

- 23 -

REQUEST NO. 35.

All Documents, including Communications, exchanged between You and any past,

present, or anticipated business partners or investors Relating To the goods and services

in connection with which You use, have used, or intend to use the Applied-For Mark.

RESPONSE/OBJECTION:


ambiguous to the extent that it refers to “[a]ll documents” relating to Communications,

exchanged between Applicant and any past, present, or anticipated business partners or

investors. Applicant further objects to the extent it seeks the disclosure of information that





REQUEST NO. 36.

Documents sufficient to show the name, job title, and job description of every

Person that was or is involved in the development, design, marketing, and/or distribution

of any goods or services offered in connection with the Applied-For Mark.

RESPONSE/OBJECTION:


and/or ambiguous to the extent that it refers to documents “sufficient to show” the name, job

title, and job description of every person that was or is involved in the marketing of “any”

- 24 -

goods or services offered in connection with the Applied-For Mark. Applicant further objects to

the extent it seeks the disclosure of information that embodies, reflects or relates to trade secrets

or other confidential research, development, or commercial information. Subject to and without

waiving these objections, Applicant refers the Opposers to the response to Interrogatory No.: 1

and Applicant’s Initial Disclosures.

REQUEST NO. 37.

All Documents Concerning the advertising, promotion, marketing, production,

transportation, sale, or distribution of Applicant’s Products in connection with which You

have used the Applied-For Mark.

RESPONSE/OBJECTION:


ambiguous to the extent that it refers to “[a]ll documents” concerning the advertising,

promotion, marketing, production, transportation, sale, or distribution of Applicant’s Products.

Applicant further objects to the extent it seeks the disclosure of information that embodies,


information. Subject to and without waiving these objections, Applicant refers the Opposers to

the responses for Requests Nos.: 25 to 29.

- 25 -

REQUEST NO. 38.

Documents sufficient to summarize, describe, evidence, or otherwise demonstrate

the exact nature of each product and service in connection with which You have used the

Applied-For Mark.

RESPONSE/OBJECTION:


and/or ambiguous to the extent that it refers to documents “sufficient to summarize” the “exact

nature’ of each product. Applicant further objects to the extent it seeks the disclosure of


development, or commercial information. Subject to and without waiving these objections,


control.

REQUEST NO. 39.

Documents sufficient to evidence the total past, current, and projected future

annual sales, by volume and dollar amount (in terms of revenue, gross profits, and net

profits), for each of Applicant’s Products.

RESPONSE/OBJECTION:


and/or ambiguous to the extent that it refers to documents “sufficient to evidence” total past,

current, and projected future annual sales. Applicant further objects to the extent it seeks the

- 26 -






refers Opposers to the supplemental response to Interrogatory No.: 17.

REQUEST NO. 40.

All Documents that record, summarize, or otherwise refer to monthly, quarterly,

and annual sales of each of Applicant’s Products.

RESPONSE/OBJECTION:


ambiguous to the extent that it refers to “[a]ll documents” that record, summarize, or otherwise

refer to monthly, quarterly, and annual sales of each of Applicant’s Products. Applicant further

objects to the extent it seeks the disclosure of information that embodies, reflects or relates to

trade secrets or other confidential research, development, or commercial information that is


proceeding nor reasonably calculated to lead to the discovery of admissible evidence.

- 27 -

REQUEST NO. 41.

Documents sufficient to evidence Applicant’s past, current, and planned future

annual expenditures on efforts to advertise, market, or otherwise promote, through any

form of media, any of Applicant’s Products.

RESPONSE/OBJECTION:


and/or ambiguous to the extent that it refers to documents “sufficient to evidence” Applicant’s

past, current, and planned future annual expenditures relating to advertisement of Applicant’s

goods and services. Applicant further objects to the extent it seeks the disclosure of information






refers Opposers to the supplemental response to Interrogatory No.: 16.

REQUEST NO. 42.

All Documents Concerning proposals for, preparation or selection of advertisements

or promotions that use the Applied-For Mark.

RESPONSE/OBJECTION:

- 28 -


ambiguous to the extent that it refers to “[a]ll documents” concerning preparation of

advertisements that use the Applied-for Mark. Applicant further objects to the extent it seeks






custody or control.

REQUEST NO. 43.

All Documents Concerning any marketing, advertising, or promotional activities

You have done or plan to do that uses the Applied-For Mark, including, without

limitation, Documents showing the cost, scope, and channels of such activities, as well as

any Communications Relating To the development and design of such activities.

RESPONSE/OBJECTION:


ambiguous to the extent that it refers to “[a]ll documents” concerning marketing, advertising, or

promotional activities of Applicant. Applicant further objects to the extent it seeks the




lead to the discovery of admissible evidence. Subject to and without waiving these objections,

- 29 -


control.

REQUEST NO. 44.

Documents sufficient to evidence all website and webpages (including, without

limitation, social media pages) on which You use, have used, or intend to use the Applied-

For Mark, including images of such websites and webpages.

RESPONSE/OBJECTION:


and/or ambiguous to the extent that it refers to documents “sufficient to evidence” all website

and webpages of Applicant. Subject to and without waiving these objections, Applicant will


REQUEST NO. 45.

All Documents Concerning any litigation or administrative proceeding Relating To

the Applied-For Mark and/or any of Applicant’s Products.

RESPONSE/OBJECTION:


ambiguous the extent that it refers to “[a]ll documents” concerning any litigation or

administrative proceeding relating To the Applied-For Mark and/or any of Applicant’s Products.

Subject to and without waiving these objections, Applicant submits that no such document

exists.

- 30 -

REQUEST NO. 46.

All Documents Concerning any complaints, protests, objections, demands, threats,

or other claims to or from You Relating To the Applied-For Mark and/or any of


RESPONSE/OBJECTION:


ambiguous to the extent that it refers to “[a]ll documents” concerning “any” complaints,

protests, objections, demands, threats, or other claims to or from You Relating To the Applied-

For Mark and/or any of Applicant’s Products. Subject to and without waiving these objections,

as this Request best understood by Applicant, Applicant submits that no such documents exist.

REQUEST NO. 47.

All Documents Concerning any accusation of trademark infringement made by or

against You in the past ten (10) years.

RESPONSE/OBJECTION:


ambiguous to the extent that it refers to “[a]ll documents” concerning any accusation of

trademark infringement made by or against Applicant in the past ten (10) years. Subject to and

without waiving these objections, Applicant submits that no such documents exist.

- 31 -

REQUEST NO. 48.

All Documents Relating To the retention or possible retention of expert witnesses

for Your use in connection with this Opposition.

RESPONSE/OBJECTION:


REQUEST NO. 49.

All Documents Relating To the opinion of any experts (including counsel) consulted

or retained by You in connection with this Opposition.

RESPONSE/OBJECTION:


ambiguous to the extent that it refers to “[a]ll documents” relating to the opinion of counsel

regarding this Opposition. Applicant further objects to this Request to the extent that it seeks

information that may be protected by the attorney-client privilege, the work-product doctrine or

any other privilege. Subject to and without waiving these objections, Applicant submits that no

such documents exist.

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REQUEST NO. 50.

Copies of any and all statements or opinions of any Person rendering advice to You

Relating To this Opposition, Opposers, Opposers’ Marks, and/or the Applied-For Mark.

Applicant objects to this Request to the extent that it seeks information that may be


REQUEST NO. 51.

All Documents which You intend to rely upon or may rely upon in this Opposition.

RESPONSE/OBJECTION:


and/or ambiguous to the extent that it refers to “[a]ll documents”, which Applicant intends to rely

on in this Opposition. Subject to and without waiving these objections, Applicant will provide

responsive, non-privileged documents in its possession, custody or control that have not been

provided in response to any of the previous Requests.

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MIXFIT INC.

/Leo V. Gureff/

By:

Leo V. Gureff


P.C. (MG-IP)


Fairfax, VA 22033

Phone: 703.621.7140 ext. 146

Email: [email protected] Date: October 23, 2020

LVG/

- 34 -


I hereby certify that a true copy of the foregoing APPLICANT’S SUPPLEMENTAL

RESPONSE TO OPPOSERS’ FIRST SET OF REQUESTS FOR PRODUCTION OF

DOCUMENTS AND THIINGS was served on counsel for Opposers, this 23 day of October,

2020, via email ([email protected]) to:


FERDINAND IP, LLC

1221 POST ROAD EAST

WESTPORT, CT 06880

UNITED STATES

/Leo V. Gureff/

__________________________________________

Leo V. Gureff
