Response to Office Action

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 1957 (Rev 10/2011)

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

---

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 1957 (Rev 10/2011)

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

Response to Office Action

To the Commissioner for Trademarks:

Application serial no. 88458838 X-SEED(Standard Characters, see http://uspto.report/TM/88458838/mark.png) has been amended as follows:

ARGUMENT(S)
In response to the substantive refusal(s), please note the following:

 

January 10, 2019

 

Via TEAS Only

 

Commission for Trademarks

Attn:  Oreoluwa Alao

Law Office 108

P O Box 1451

Alexandria VA  22313-1451

 

            Re:      Serial Number:         88/458838

                        Trademark:               X-SEED

                        Applicant:                 DLF Pickseed USA, Inc.

                        Our file no.                5378/C569-93

 

Dear Ms. Alao:

 

This letter is responding to the Office Action issued on July 12, 2019 with regard to the above-referenced application.

 

DLF Pickseed USA (“DLF” or “Applicant”) hereby responds to the Office Action dated July 12, 2019, regarding U.S. Trademark Application Serial No. 88458838 for X-SEED (standard character) (the “Pending Mark”).  The Office Action identified U.S. Registration Nos. 2466876 and 5082668 (both for the standard character mark “EXCEED”) and U.S. Application Serial No. 88425195 (EXSEED) as possible bars to registration because of a perceived likelihood of confusion between the marks.  However, as outlined below, no likelihood of confusion has existed or does exist between the marks. 

 

The Applicant submits the following information and arguments in support of registration.

 

     I.         Relevant Facts

 

X-Seed, Inc. (the “Company”) was formed in November 2004.  The X-SEED brand was created at the same time and was applied to the full line of seed products sold by the Company, including but not limited to, premium lawn, pasture, wildflower, and wildlife seed mixtures.   In December 2005, the Company applied for federal registration of the X-SEED mark in Class 031 for use with “Agricultural seeds” (the “Registered Mark”).  An Office Action was issued in response to the application.  While the Office Action raised several issues to be addressed with the application, the examiner was clear there were “no similar registered or pending mark has been found that would bar registration under Trademark Act Section 2(d), 15 U.S.C. §1052(d).”  Importantly, at that time, the mark “EXCEED” (Reg. No.: 2466876; Registration Date: July 10, 2001; Owner: Fair Products, Inc.; Class 001), which has now been raised as a bar to registration of Applicant’s Pending Mark, had already been registered for several years.  In addition to the trademark examiner finding no similar marks that would bar registration, no third parties filed opposition proceedings against the original application.  As such, Applicant’s Registered Mark was registered on November 20, 2007, under U.S. Reg. No. 3,339,424.  Of further note, at no time before the application, during the application process, or after registration did any third party, including Fair Products, Inc, issue a cease & desist letter, file a cancellation proceeding, or file an infringement proceeding related to the Registered Mark. The Registered Mark remained registered through November 13, 2018.

 

On or around August 2, 2014, Visjon Biologics, LLC, filed an intent-to-use application for the mark EXCEED (Reg. No.: 5082668; Registration Date: November 15, 2016; Class 001).  The mark was registered on November 15, 2016, and has also now been raised as a bar to registration of Applicant’s Pending Mark.  At the time of Visjon Biologics’ application, neither Applicant’s Registered Mark nor Fair Products EXCEED mark were raised by the trademark examiner as a bar to registration of Visjon Biologics’ EXCEED mark. Each of Applicant’s Registered Mark and Fair Products EXCEED mark had been registered for many years (about 9 years and 13 years, respectively) prior to Visjon Biologics’ application.

 

All three marks—the two EXCEED marks and Applicant’s Registered Mark—coexisted in the marketplace during the relevant time periods without any apparent confusion, even between the two EXCEED marks which are filed in the same Class (Class 001).

 

In early 2017, the Company converted from a corporation to an LLC and, subsequently, filed an assignment of the Registered Mark with the USPTO (see Reel/Frame 6118/0798), which was recorded on July 31, 2017. In March, DLF Pickseed USA (“DLF” or “Applicant”) acquired the Company and the X-SEED brand.  The Registered Mark was still registered at the time and up for renewal during the acquisition process.  As a result, DLF filed a Section 8 Declaration and Section 9 Renewal on November 14, 2017, under DLF’s name as owner.  On December 21, 2017, a post-registration Office Action issued indicating that USPTO records did not show a chain of title between the Company and DLF and, therefore, the renewal was being held up for an assignment to be recorded.  The Registered Mark was cancelled on October 30, 2018, for failure to correct the ownership issue prior to the response date for the post-registration Office Action.  A NUNC PRO TUNC ASSIGNMENT EFFECTIVE 12/31/2017, was filed on April 23, 2019 (see Reel/Frame 6626/0889) confirming DLF as the owner of the Registered Mark.

 

From the time it purchased the Company, DLF continued to sell the full line of X-SEED products under the X-SEED brand, and still does so to this day.  As such, the Company and DLF have had continuous and exclusive use of the Registered Mark and Pending Mark (collectively, “Mark”) since the Mark’s creation.  No other party has made a claim to any superior rights to use the Mark since its first use in commerce on February 9, 2005.

 

On June 4, 2019, DLF re-applied for registration of the Mark.   With only one exception that is not material to the issues to be addressed herein*, the details of the application are identical to the initial application filed in 2005 including the Classification and Identification of Goods in Class 031 for “Agricultural seeds.”  (*The exception is that in the current application, color is not claimed as a feature of the mark.)

 

On July 12, 2019, an Office Action was issued in response to the current application for the Pending Mark citing the following registered marks as bars to registration under a likelihood of confusion analysis:

 

Registration No.	MARK	OWNER	RELEVANT GOODS AND/OR SERVICES	CLASS
2466876	EXCEED	Fair Products, Inc.	fertilizer for agricultural use in connection with tobacco	1
5082668	EXCEED	Visjon Biologics, LLC	Chemicals used in agriculture, namely, seed inoculants and plant-growth promoters for legume crops	1

 

   II.         Likelihood of Confusion Standard

 

Section 2(d) of the Trademark Act prohibits registration of a mark that is likely to cause confusion with a federally registered mark.  15 U.S.C.A. § 1052(d).  In assessing whether a mark so resembles a previously registered mark that it is likely to cause confusion, the analysis focuses on whether there is a likelihood of confusion as to the source of the goods rather than whether the goods themselves are likely to be confused, In re Shell Oil Co., 992 F.2d 1204, 1208 (Fed. Cir. 1993), or “whether people will confuse the marks.”  Paula Payne Products Co. v. Johnson Publishing Co., Inc., 473 F.2d 901, 902, 177 USPQ 76 (C.C.P.A. 1973). 

 

Thirteen factors may be considered in determining whether a likelihood of confusion exists under 15 U.S.C. § 1052(d).  Application of E. I. DuPont DeNemours & Co., 476 F.2d 1357, 1361 (C.C.P.A. 1973).  Not all of the DuPont factors are relevant or of equal weight in a given case, and any one of the factors may control a particular case.  In re Majestic Distrib. Co., 315 F.3d 1311, 1315 (Fed. Cir. 2003).  Each case must be decided on its specific facts.

 

The U.S. Patent and Trademark Office concluded that the applied-for mark was likely to be confused with two previously registered marks and one previously-filed application.  The analyses below address each mark in turn and the relevant factors for those marks.  For the reasons stated below, there would not be a likelihood of confusion between the marks and the Applicant’s mark should proceed to publication.

 

 III.         The Applied-For Mark Is Not Likely to be Confused with the Prior Registrations.

 

Many of the DuPont factors weigh heavily in favor of a finding there is no likelihood of confusion between the Applicant’s Pending Mark and Fair Products’ EXCEED mark.  The most significant factor is that the Applicant’s Mark and Fair Products’ EXCEED mark have coexisted in the marketplace for nearly 15 years, 11 of which were while the Applicant’s Mark was registered with the U.S. Patent and Trademark Office (U.S. Reg. No. 3,339,424).  See In Re Strategic Partners, Inc., 102 U.S.P.Q.2d 1397 (T.T.A.B. 2012).  Additional DuPont factors relevant to this inquiry include:

 

(1) The similarity or dissimilarity of the marks in their entireties as to appearance, sound, connotation and commercial impression;

 

(2) The similarity or dissimilarity and nature of the goods or services as described in an application or registration or in connection with which a prior mark is in use;

 

(3) The similarity or dissimilarity of established, likely-to-continue trade channels …; [and]

 

(8) The length of time during and conditions under which there has been concurrent use without evidence of actual confusion.

 

Application of E. I. DuPont DeNemours & Co., 476 F.2d 1357, 1361 (C.C.P.A. 1973).

 

Regardless of the other factors, the fact that the marks have coexisted in the marketplace for nearly 15 years, 11 of which were while the Applicant’s Mark was registered, should “tip the scale” in favor of a finding of no likelihood of confusion.  See In Re Strategic Partners, Inc., 102 U.S.P.Q.2d 1397 (T.T.A.B. 2012).  Additionally, the marks are different and convey different and distinct commercial impressions; the products are not related, they are marketed to different consumers, and they travel in different channels of commerce; and there is no evidence of actual consumer confusion during the entire time that the marks have coexisted in the marketplace.  For these reasons, there is no likelihood of confusion and the Applicant requests that the refusal be withdrawn.

 

A.   The marks have coexisted in the marketplace for an extensive period of time.

 

The fact that similar or identical marks have coexisted in the marketplace for an extended period of time is a significant factor in a likelihood of confusion analysis.  In Re Strategic Partners, Inc., 102 U.S.P.Q.2d 1397 (T.T.A.B. 2012).  When the applicant has marketed their goods in the United States for over a decade, the lack of evidence of actual confusion during that time “weighs against a holding of likelihood of confusion.”  G.H. Mumm & Cie v. Desnoes & Geddes, Ltd., 917 F.2d 1292, 1295 (Fed. Cir. 1990); see also King Candy Co. v. Eunice King's Kitchen, Inc., 496 F.2d 1400, 1402 (C.C.P.A. 1974) (holding that the lack of actual confusion over a period of 20 years “must be considered in this case as supportive of a finding that confusion is not likely in the future.”).  Evidence of coexistence in the marketplace must be considered in a likelihood of confusion analysis.  In re Guild Mortg. Co., 912 F.3d 1376, 1381 (Fed. Cir. 2019).

 

The Applicant’s Mark has been used continuously in commerce by Applicant and the Company (Applicant’s predecessor in interest) for nearly 15 years, 11 of which were while the Mark was registered.  The Mark was first used in commerce in February 2005 and the original application for registration was filed in December 2005.  The Mark registered on November 20, 2007, U.S. Reg. No. 3,339,424, in Class 031 for use with “agricultural seeds.”  The Mark remained registered until November 13, 2018.  In spite of the lapse in registration, the Company and DLF have had continuous and exclusive use of the Mark since the Mark’s creation.  No other party has made a claim to any superior rights to use the Mark since its first use in commerce on February 9, 2005. The Applicant filed a new registration on June 4, 2019.

 

During the entire time the Applicant was using its Mark, including during the entire time the Mark was registered, the Mark coexisted in the marketplace with the Fair Products’ EXCEED mark, U.S. Reg. No. 2,466,876, which was first registered in July 2001 and is currently registered.  The Fair Products’ EXCEED mark was registered during the entire time that the Applicant was using its mark in commerce and during the entire time that the Applicant’s mark was registered.  The marks have coexisted in the marketplace for nearly 15 years.  The Applicant’s Mark and the Fair Products’ EXCEED mark were registered simultaneously for 11 of those years.  The Visjon Biologics’ EXCEED mark, U.S. Reg. No. 5,082,668, which was registered after Applicant’s Registered Mark, has co-existed in the marketplace with Applicant’s Mark for 5 years. The fact that all three marks co-existed in the marketplace and while registered with the USPTO shows that there is no likelihood of confusion between the marks.

 

The fact that there is no likelihood of confusion between the marks is further supported by the fact that no likelihood of confusion was found in prior registrations.  When the Applicant filed for registration of its mark in December 2005, the trademark examiner for that application specifically indicated that she searched the USPTO records and “no similar registered or pending mark has been found that would bar registration under Trademark Act Section 2(d), 15 U.S.C. §1052(d).”  U.S. Reg. No. 3339424, Office Action, June 26, 2016.  When Visjon Biologics, LLC, applied for registration of its mark EXCEED in August 21, 2014—a mark that is exactly the same as the Fair Products’ EXCEED mark—the trademark examiner also specifically stated that “[t]he trademark examining attorney’s search of the Office’s database of registered and pending marks has revealed no conflicting marks that would bar registration.”  U.S. Reg. No. 5082668, Office Action, Dec. 5, 2014.  Despite the supposed similarities between the marks at issue now, these marks were not found to have been confusingly similar during these prior application and registration periods.

 

In spite of the obvious co-existence of the three marks, both the Applicant’s initial application and that of Visjon Biologics proceeded to registration.  Further, during this extensive co-existence period for the three marks, there were no opposition filings made, no cease & desist letters issued, nor any cancellation or infringement proceedings initiated.  The fact that all three marks have co-existed in the marketplace for an extended period of time without any conflict shows that there is no likelihood of confusion between the marks.  These facts alone weigh in favor of registration.

 

B.    The marks, in their entireties, are not similar.

 

Another predominant inquiry in a likelihood of confusion analysis is the “similarity or dissimilarity of the marks in their entireties.”  Hewlett-Packard Co. v. Packard Press, Inc., 281 F.3d 1261, 1265 (Fed. Cir. 2002).  “This factor examines the relevant features of the marks, including appearance, sound, connotation, and commercial impression.”  Id.  “The marks must be considered in their entireties, words and design” and “in the way in which they are perceived by the relevant public.”  In re Shell Oil Co., 992 F.2d 1204, 1206 (Fed. Cir. 1993).

 

Although only one factor may be sufficient in some cases to indicate likelihood of confusion, it does not necessarily do so.  Sure-Fit Prod. Co. v. Saltzson Drapery Co., 254 F.2d 158, 160 (C.C.P.A. 1958).  Where certain features of the mark are more dominant, it is appropriate to give those features greater weight.  Hewlett-Packard, 281 F.3d at 1265–66.  If there is evidence that the sound-identification of a mark is stressed in advertising, phonetic similarity is given more weight.  See Kimberly-Clark Corp. v. H. Douglas Enterprises, Ltd., 774 F.2d 1144, 1146 (Fed. Cir. 1985).  But “[e]ven where the marks at issue are identical, or nearly identical, the Board has found that differences in connotation can outweigh visual and phonetic similarity.”  Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 1368 (Fed. Cir. 2012). 

 

For example, in In Re Sears, Roebuck & Co., 2 U.S.P.Q.2d 1312 (T.T.A.B. 1987), the Board found that the meaning of the mark “CROSS-OVER” as applied to brassieres differed from the meaning of the mark “CROSSOVER” as applied to women’s sportswear—one suggested the product’s construction while the other suggested that the product “‘crosses over’ the line between informal and more formal wear.”  Id.  The Board concluded in that case that, “[a]s a result of their different meanings when applied to the goods of applicant and registrant, the two marks create different commercial impressions, notwithstanding the fact that they are legally identical in sound and appearance.”  Id.; see also Singer Co. v. Unishops, Inc., 421 F.2d 1371, 1372 (C.C.P.A. 1970) (holding that the mark SINGER was not sufficiently similar to the mark SLINGER for there to be a likelihood of confusion between the marks).

 

Here, there is no similarity as to the marks’ appearances, connotations, or commercial impression.  The Applicant’s mark is the letter “X” followed by the word “SEED” and separated by a hyphen, while Fair Products’ and Visjon Biologics’ marks are just one word, “Exceed.”  The Fair Products’ and Visjon Biologics’ EXCEED marks have no hyphen, dash, or other element separating or distinguishing different elements of the mark.

 

The three marks have different connotations and commercial impressions.  The word “Seed” means a plant seed, the type of goods sold under the X-SEED brand.  The letter “X” means “to indicate choice” or to mean “extra” or “extraordinary.”  X, Dictionary.com, http://www.dictionary.com/browse/x?s=t (last visited Jan. 8, 2020).  The letter “X” may also mean “an unknown quantity” or it may be used to indicate multiplication or a power of magnification.  Id.  The applied-for mark, when used in connection with the goods identified in the application—agricultural seeds—conveys to the consumer that they should choose X-SEED brand seeds, and that these seeds are extraordinary and an order of magnitude better than other leading brands.  That impression is in stark contrast to the one conveyed by the Fair Products’ mark, which simply conveys the impression that their product will help commercial tobacco growers increase their productivity levels, or Visjon Biologics’ mark, which conveys the impression that their products will help commercial legume growers produce an increased legume crop yield.

 

Additionally, the mark X-SEED is a “house” mark.  The mark indicates a full line of products sold by the Applicant.  The X-SEED brand is full line of premium lawn, pasture, wildflower, and wildlife seed mixtures products.  Exhibit 1, p. 2 (2018 X-Seed Retail Catalog identifying the products sold under the X-SEED brand).  The letter “X” itself is also used throughout the Applicant’s marketing and branding on these products.  Although sometimes styled differently, the letter “X” is used with other products like X-Pand (U.S. Reg. No. 4,367,655) (id. at p. 9), and it is used to distinguish the Applicant’s products from those of its competitors (id. at p. 5 (“2X the coverage than leading brands”; “2X more seed than leading brands”) & p. 11 (“4X more coverage than other leading brands”)).

 

By contrast, the Fair Products’ EXCEED mark is a “product” mark, not a “house” mark.  The Fair Products’ mark identifies a type of fertilizer that is used only with tobacco products (U.S. Reg. No. 2,466,876 (Goods and Services); Product Information, Fair Products, Inc., http://fairproductsinc.com/ProductInfoPage.html (last visited Jan. 9, 2020)).  When consumers view the Fair Products’ EXCEED mark, they would associate the mark with a tobacco fertilizer; but with the Applicant’s X-SEED mark, consumers associate the mark with a line of different lawn, garden, and pasture products, all of which have particular qualities and characteristics unique to the X-SEED brand.

 

Although there is some phonetic similarity between the marks if the mark X-SEED is pronounced a certain way, sound-identification is not stressed in any of the marks.  Nor is sound-identification a feature of any of the marks.  From the consumer’s perspective, these are entirely different marks identifying entirely different products.  They are different in appearance, different in connotation, and leave completely different commercial impressions on the consumer.  For these reasons, this factor weighs against a finding that there would be a likelihood of confusion.  See Jacobs v. Int’l Multifoods Corp., 668 F.2d 1234, 1236, 212 USPQ 641, 642 (CCPA 1982) (comparing BOSTON TEA PARTY with BOSTON SEA PARTY).

 

C.   The goods as described in the application and registrations are not related, and the trade channels do not overlap.

 

In assessing the relatedness of the goods, the degree of relatedness of the goods needed for a finding of likelihood of confusion is directly proportional to the similarity of the marks at issue.  The less similar the marks, the more related the goods need to be and vice versa.  See In re Shell Oil Co., 992 F.2d 1204, 1207 (Fed. Cir. 1993).  Although goods do not need to be identical, they must be “sufficiently related that a reasonable consumer would be confused as to source or sponsorship.”  In re Shell Oil Co., 992 F.2d 1204, 1207 (Fed. Cir. 1993).  “The degree of ‘relatedness’ must be viewed in the context of all the factors.”  Id.

 

Relevant to this inquiry is “the degree of overlap of consumers,” id., and the “competitive proximity” of the products, Brookfield Commc'ns, Inc. v. W. Coast Entm't Corp., 174 F.3d 1036, 1056 (9th Cir. 1999).  It is not necessary that the goods be similar or competitive, but they must be related in some manner such that they would or could be encountered by the same persons under circumstances that could, because of the similarities of the marks, “give rise to the mistaken belief that they originate from or are in some way associated with the same producer.”  Hilson Research, Inc. v. Soc’y for Human Res. Mgmt., 27 U.S.P.Q.2d 1423, 1432 (T.T.A.B. 1993).

 

The Applicant’s 2018 retail catalog for the X-SEED brand of products shows the type of goods on which the applied-for mark is used.  Exhibit 1.  Those goods are “agricultural seeds” including but not limited to premium lawn, pasture, wildflower, and wildlife seed mixtures.  Those goods are marketed and sold for personal use for growing healthy and vibrant lawns, gardens, and pastures. 

 

The goods identified in the Fair Products’ EXCEED registration is “fertilizer for agricultural use in connection with tobacco.”  (U.S. Reg. No. 2466876 (Goods and Services)).  The Applicant does not sell tobacco crops or tobacco-related agricultural products.  Fertilizer used with tobacco crops is not sufficiently related to lawn, pasture, or wildflower seeds such that a reasonable consumer would be confused as to source or sponsorship.  The commercial crop industry is a different market than the grass seed industry.  Additionally, Fair Products’ website specifically states that their product is for commercial production: “The use of EXCEED at recommended rates will also result in increased plant uniformity -- a must for commercial production.”  Exhibit 2 (Product Information, Fair Products, Inc., http://fairproductsinc.com/ProductInfoPage.html (last visited Jan. 9, 2020) (emphasis added)).  There is no competitive proximity between fertilizer used for commercial tobacco crops and lawn, garden, and pasture seeds.  These goods are not related.

 

The goods identified in Visjon Biologics’ EXCEED registration are “Chemicals used in agriculture, namely, seed inoculants and plant-growth promoters for legume crops.”  (U.S. Reg. No. 5082668 (Goods and Services)).  Chemical seed inoculants are not part of X-SEED’s line of products, and there is no competitive proximity between those goods and lawn, pasture, wildflower, and wildlife seed mixtures.  The parties have considered the relatedness of their goods and channels of trade, and they have determined that “the products themselves and the parties’ current and expected future channels of trade will not likely overlap and are distinct.”  Exhibit 3 (Trademark Consent and Co-Existence Agreement), p. 5.

 

The type of goods sold by each party, their respective markets, and the degree of overlap of consumers show that the goods are not related and the channels of trade do not overlap.  An individual purchasing grass seed is not going to confuse an X-SEED Bluegrass Blend Ultra Premium Lawn Seed Mixture with a commercial crop EXCEED tobacco fertilizer or legume inoculant.  There is no competitive proximity between those products, and they would not be encountered by the same persons under circumstances that could give rise to the mistaken belief that the products originate from the same producer.  And the fact that, to the Applicant’s knowledge, no instances of consumer confusion exist is further evidence that the trade channels do not overlap.  Neither the goods, nor the channels of trade, are the same or similar.

 

 IV.         Co-Existence Agreement

 

In addition to the many reasons outlined above showing there is no likelihood of confusion between Applicant’s Pending Mark and the two EXCEED marks, an additional basis exists for finding no likelihood of confusion with the EXCEED mark owned by Visjon Biologics (U.S. Reg. No. 5082668).  In recognition of the lack of any actual or perceived confusion, Visjon Biologics and Applicant entered into a Trademark Consent and Co-existence Agreement related to Applicant’s Mark and Visjon Biologics’ EXCEED mark.  A copy of the Consent is attached hereto as Exhibit 3.

 

Further, Applicant contacted Fair Products regarding a possible co-existence agreement.  While Fair Products declined to enter into such an agreement, it also did not make any demand that Applicant cease use of its Mark. 

 

The co-existence agreement with Visjon Biologics and Fair Products lack of any object to Applicant’s prior and ongoing use of the mark is further evidence against a likelihood of confusion between the marks. As such, neither of the EXCEED marks should be a barrier to registration of Applicant’s Pending Mark.

 

   V.         Prior-Filed Application

 

Finally, the Office Action at issue included an “advisory” Section 2(d) refusal based on prior-filed application, which precedes Applicant’s filing date.  The relevant details of the prior-filed application are as follows:

 

Serial No.	MARK	OWNER	RELEVANT GOODS AND/OR SERVICES	CLASS
88425195	EXSEED	WINA, LLC	Seeds for wildlife plantings, namely, alfalfa and clover, used by hunters to develop feeding stands to attract deer	31

 

As evidenced by the Express Abandonment filed on August 21, 2019, and the Notice of Abandonment issued by the USPTO on November 22, 2019, the prior-filed application has been abandoned and is therefore no longer a barrier to registration of Applicant’s Pending Mark. For convenience, copies of the Express Abandonment and Notice of Abandonment are attached hereto as Exhibits 4 & 5, respectively.

 

 VI.         Conclusion

 

For the reasons outlined above, no likelihood of confusion exists among the marks cited in the Office Action and Applicant respectfully requests that the Pending Mark be allowed to proceed to publication.

 

 

                                                                        Regards,

 

                                                                        Hutchinson Cox

 

 

 

                                                                        Megan I. Livermore

EVIDENCE
Evidence in the nature of Exhibit 1 - 2018 X-Seed Retail Catalog; Exhibit 2 - Printout of the "Product Information" page on Fair Products, Inc.'s website; Exhibit 3 - Consent and Coexistence Agreement between Visjon Biologics and DLF Pickseed USA; Exhibit 4 - Request for Express Abandonment filed with EXSEED Application Serial No. 88425195; Exhibit 5 - Notice of Abandonment filed with EXSEED Application Serial No. 88425195 has been attached.
Original PDF file:
evi_19966196106-20200110173941665441_._X-SEED_Response_Exhibits.pdf
Converted PDF file(s) ( 32 pages)
Evidence-1
Evidence-2
Evidence-3
Evidence-4
Evidence-5
Evidence-6
Evidence-7
Evidence-8
Evidence-9
Evidence-10
Evidence-11
Evidence-12
Evidence-13
Evidence-14
Evidence-15
Evidence-16
Evidence-17
Evidence-18
Evidence-19
Evidence-20
Evidence-21
Evidence-22
Evidence-23
Evidence-24
Evidence-25
Evidence-26
Evidence-27
Evidence-28
Evidence-29
Evidence-30
Evidence-31
Evidence-32

The applicant's current attorney information: Megan Livermore. Megan Livermore of HUTCHINSON COX, is located at

      PO BOX 10886
      EUGENE, Oregon 97440
      US

The phone number is 541-686-9160.

The fax number is 541-343-8693.

The email address is mlivermore@eugenelaw.com

The applicants proposed attorney information: Megan Livermore. Other appointed attorneys are Jonathan Hood. Megan Livermore of HUTCHINSON COX, is a member of the XX bar, admitted to the bar in XXXX, bar membership no. XXX, and the attorney(s) is located at

      PO BOX 10886
      EUGENE, Oregon 97440
      United States

The phone number is 541-686-9160.

The fax number is 541-343-8693.

The email address is mlivermore@eugenelaw.com

Megan Livermore 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: MEGAN LIVERMORE. MEGAN LIVERMORE of HUTCHINSON COX, is located at

      PO BOX 10886
      EUGENE, Oregon 97440
      US

The phone number is 541-686-9160.

The fax number is 541-343-8693.

The email address is mlivermore@eugenelaw.com; jhood@eugenelaw.com; gcross@eugenelaw.com

The applicants proposed correspondence information: Megan Livermore. Megan Livermore of HUTCHINSON COX, is located at

      PO BOX 10886
      EUGENE, Oregon 97440
      United States

The phone number is 541-686-9160.

The fax number is 541-343-8693.

The email address is mlivermore@eugenelaw.com; gcross@eugenelaw.com; jhood@eugenelaw.com

SIGNATURE(S)
Response Signature
Signature: /Jonathan M. Hood/     Date: 01/10/2020
Signatory's Name: Jonathan M. Hood
Signatory's Position: Attorney of record, Oregon Bar member

Signatory's Phone Number: 541-686-9160

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.

Mailing Address:    MEGAN LIVERMORE
   HUTCHINSON COX
   
   PO BOX 10886
   EUGENE, Oregon 97440
Mailing Address:    Megan Livermore
   HUTCHINSON COX
   PO BOX 10886
   EUGENE, Oregon 97440
        
Serial Number: 88458838
Internet Transmission Date: Fri Jan 10 17:44:55 EST 2020
TEAS Stamp: USPTO/ROA-XXX.XX.XXX.XXX-202001101744556
91504-88458838-70058380d71cf95881fdf9645
cf2cdd31fd436924064998e80ea84f5c3d1c4-N/
A-N/A-20200110173941665441