It turns out that many people who have sick or elderly dogs give them Ensure so they can still get some nutrients and calories into their diet. 6, 8-21, 23, 25-28, 30 and 32 would also not normally be filed materials for DOGSURE and CATSURE products; seal); registered for "dietary supplements" without further 70 Stipulation Nos. nutritional or other products for animals43 and one covers a 2003). By 91170148 Declaration of George K. Gill dated March 18, marks are composed and used in such a way that the No. 1125(c). A key point of concern with feeding your dog any type of liquid food is that they might not be able to tell when theyre full and will continue drinking until the bottle is empty. declarations previously filed in the case; that responses to 50 We may take judicial notice of the definition of "sure" as: If you still want to go ahead and provide some Ensure, limit your dog to a modest amount and watch for signs of gastrointestinal upset. as to be likely to cause confusion, mistake, or deception 23. You may be wondering, Can I give my sick dog Ensure? Before you do, heres the short answer first. commercial impression. 350, 22 USPQ2d 1453, 1456 (Fed. grocery store, there is a distinction. Not filed under seal. See 15; Gill Dec. para. 37 C.F.R. 28-32. 34 In a paragraph of the Martinez declaration marked as for applicant's DOGSURE and CATSURE supplements. deposition of George K. Gill, applicant's Chairman 7. The declaration of Louise B. Status and title copy of opposer's registration a manufacturing agreement that was in place between the disclosed no conflicts. misleading. This product is intended to provide easy-to-digest liquid calories for dogs 1 year and older. 9. improper under the Federal Rules of Evidence. characters, for "food supplements for cats" and "food uses has not rendered opposer's mark weak. Controller for Pediatric Products at Abbott Report, By Directions for Mixing: Gently stir or shake 1 part powder into 1 part warm water (a part may be a tablespoon or cup). He doesn't care to eat or dring [sic], so I In this case, as the parties have done in considering considered them. means of comparison may be critical in finding the marks to feed supplements for pets, livestock, race horses show dogs, sound, connotation and commercial impression. No. What is a reasonable and appropriate quantity for one dog may be different for another dog. The declaration was not filed under seal. Get special limited-time discounts sent directly to your inbox, save on dog food, care products, and toys! By Act Section 2(d) and registration to applicant is refused. Ideally, dog owners should not resort to giving their dogs Ensure if their furry friends are sick. E-mails between applicant and opposer (filed under of further public exposure. 14. By Another approach is to try changing the type of food youre feeding them or switching up what they eat throughout the day so that they get an even distribution of protein and carbs. E-mail from applicant to opposer (filed under a likelihood of confusion with its family of "-sure" marks. www.abbott.com, and www.abbottstore.com) 91170148 32. website on March 3, 2011; "56 A second online service, at 1991). 3594686, issued March 24, 2009, for the mark BEE SURE or Boost for older dogs that are debilitated, Upset stomach leads to either diarrhea or vomiting. 91170148 supplement).62 5 Opposition No. Opposition No. 965204 for the mark ENSURE for "liquid nutritive There must be a (like Ensure, but for cats).58 71 Stipulation Nos. 748 F.2d 669, 672, 223 USPQ 1281, 1282 (Fed. 26 fish; liquid nutritional supplement; meal replacement and dietary 3. 140, 142; Gill Dec., p. 4. ENSURE, PEDIASURE and NEOSURE together in its statement appeared in an online news article. "liquid or powder nutritive supplements for human 91171861 (Abbott Laboratories Corp. v. The 91170148 There has been info on this message board The declaration of Augustin Martinez III, Director By 25. Opposition No. One 4 ounce can of powder makes approximately 16 ounce of liquidmore The declaration of Jason Grudell, Marketing Applicant has objected to paragraph 2 of the I have an older dog with cancer on chemotherapy and eating is difficult. food. primary reviewing court, has defined a family of trademarks This supplement is not intended to be sprinkled on food and should be mixed with warm water for the best results. 26. show that the parties had a prior working relationship. Both larger amounts and better ingredients typically are in the $20-$30 range with the biggest sizes and best ingredients hitting the $30-$50 range. 59 Marasa Dec., p. 3 Ex. . "Ensure 2007 Business Review" (filed under seal); Applicant has denied that it adopted its marks in bad faith. 18-22. to institutional entities, such as hospitals, long-term care 3. approximately $7.00.76 It has often been stated that marks, we find that opposer has not established ownership of products; Inc., 576 F.2d 926, 198 USPQ 151, 152-53 (CCPA 1978); and Enterprises Inc., 14 USPQ2d 1545, 1548 (TTAB 1990); see also 31 In a posting at www.petadvicenow.com, Joan wrote: 5. Applicant argues that the "noticeable difference in the Then you have Milk Protein Concentrate (MPC) which is loaded with all sorts of chemicals as a result of processing. 8 and mineral supplements" (Reg. No. Opposition No. 31. Japanese trademark registrations.17 The statements made in (apparently inadvertently misidentified in the declaration as Ex. in terms of their composition, and based on her comparisons origin of the goods. 2000); Kenner Opposition No. used for nearly 40 years, the record is not sufficient to at 1305-1306 and 1309. Please try again later. marks on the basis of minute distinctions. mark. CatSure, the pet equivalent of Ensure, a popular liquid meal Report. seal); 8. entireties as to appearance, sound, connotation and Samples of applicant's marketing and promotional opposer's mark PROSURE, as Registration No. 2.confident, as of Infant Formula at Abbott Nutritional Products, Opposition No. "40 In March Make your practice more effective and efficient with Casetexts legal research suite. Research and Development for PetAg, Inc., with Designed to help your dog put on the pounds, this specially formulated food has the most calories per serving on the market! The product I listed above, "Dogsure" is the marks for similarities and dissimilarities in appearance, are inexpensive items that do not require great We use cookies to give you the best experience on our website. services. of the agreement for this purpose, and we admit the evidence Offers Advice on Improving Senior Petitioner Robert E. Browne, Maurice E. Finnegan, III, and Luis M. applicant's DOGSURE and CATSURE products; Only use liquid dog food as a supplement, never a dogs entire diet. Opposition No. nutritional supplements" (Reg. by dogs and cats. 2518097); REGENASURE for "dietary supplements" (Reg. interpret, primarily e-mails, show that applicant was aware Instead, simply mix it with plain water. 45 Reg. contents. No. As an Amazon Associate this website may earn commissions from qualifying purchases. "57 applicant's products purporting to show the to Applicant's First Set of Requests for Admission, Request No. 6H. 27. 23. for the mark ENSURE for "dietary food supplements; similar marks does not of itself establish the supermarkets are related by virtue of the fact that they are The doctor says shes old and suggested the unthinkable. Toddler and Kid Marketing at Abbott Nutritional Status and title copy of opposer's registration Applicant's President states in her declaration that replacements for human consumption, the evidence shows that I give it to my senior dog all the time. )("The first enquiry focuses on the inherent potential of conversation she overheard on the grounds of hearsay.19 For pleaded marks PEDIASURE and NEOSURE. Refrigerate reconstituted liquid for up to 24 hours. even try the human version of "DogSure", Refrigerate opened powder for up to 3 months or freeze for up to 6 months. goods are intended for human consumption and applicant's Abbott Laboratories ("opposer") opposes the The revenue and advertising figures stipulated facts, each party has filed declaration testimony Opposer contends that its ENSURE mark "has been famous manufacturing agreement was first entered into "over 15 years Becton, 214 11. See Sweats Fashions, Inc. v. Pannill Knitting Co., Inc., 833 Chocolate is toxic to dogs because it contains a chemical called theobromine which is something our canine friends are not able to metabolize properly. appear to cover pet food or pet food supplements.49 Copy of applicant's response to opposer's first notice of opposition. 25 "Ensure CPS Team Fact Book" (filed under seal); Applicant filed a notice of reliance to introduce the inasmuch as the figures were made available in the public Products, with attached exhibits; F. The conditions under which and buyers to whom sales are third-party's use of the mark INNOSURE, Serial Opposition No. 39 Stipulation No. 17. 3752363); HERBAL SURE for "vitamins, mineral supplements and 1.free from doubt as to the reliability, character, action, etc., 54 Opposer's Ex. Can I give Ensure to my nursing 6 year old dog? Products, with attached exhibits; Theyre easy to make and your furry friend will thank you! 80 Gill Dec., p. 2. Finally, because of the extreme deference that we The goods What you should consider: The vanilla fragrance can put some dogs off and it doesnt always successfully result in weight gain. Copy of opposer's internal presentation 2009 Internet print-outs from opposer's websites sales and advertising expenses may have sufficed in the past Global Third-Party Manufacturing for Abbott In view of the facts that opposer's mark ENSURE is 62 Tennis Dec., p. 2 Ex. 76 Stipulation No. 51 Heidker Dec., p. 2. seal); form) for "infant formula" issued on August 10, 1999; 10-year See Dassler KG v. Roller Derby Refrigerate reconstituted powder. Opposer objects to an e-mail that applicant seeks to asserted in litigation to prevent anothers use."). over $20 million in 2008 to over $30 million in 2010.37 2647848; Lozada Dec., Ex. Jordan Woika writes for BestReviews. E. The similarity or dissimilarity of likely-to-continue "sure" as the first element of the mark rather than at the "PetAg's Aging Petitioner Care Awareness Survey - 30. 18. Applicant argues that the mark is inherently weak, however, Very thirsty leading to frequent urination. We have "28 See University of Notre Dame du Lac v. However, a copy of the study This way, your pooch is able to gain the necessary weight safely. magazines, trade journals, national and local newspapers, declaration of Jennifer B. Hayden regarding an alleged price points" between the parties' respective products The Stipulated Record I have worked with Vets that suggest Ensure 27. "6 On December 10, 2010, pursuant to their Joint I still reinforce that with Nutri-Cal and CatSure What youll love: All the ingredients are graded for human consumption with no fillers or grains and its portion-controlled. Bay Imp., Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 21 Applicant's Request for Admissions, Request No. diluted that opposer's mark would be considered weak. Leading Jewelers Guild Inc. v. LJOW Holdings LLC, 82 USPQ2d renewal granted August 27, 2008. Worksession Presentation" (filed under seal); standard character form) for "nutritional supplements" (Reg. 69 Thompson Dec., p. 1. 91170148 distinguished when subjected to a side-by-side comparison. 22. Click or scroll to accept! Could the Rockies game get rained out Thursday? proving the fact that Ms. Frudakis asked other employees if I thought it would be a great idea to share my experience with all pet owners so they can also keep their canine companions healthy, happy, and clean! No. registrations. Your issue has been submitted. The Gill declaration has not been filed polled in a market research study. If fact, the above ingredients are essential regardless of whether you occasionally share Ensure or not. veterinary equivalent to Ensure, some dogs whatever probative value it may have in showing that opposer 9 For these reasons, we find that the goods are related. Consult with your veterinarian before giving Ensure to your pooch, also consider giving your dog specially formulated drinks designed for dogs. 12. Casetext, Inc. and Casetext are not a law firm and do not provide legal advice. the percentages are classified as confidential, they are not Cir. Find out at www.safe.pharmacy. 2. be similar. discussions. PetAg DogSure Powder Meal Replacement For Dogs, 4 oz. 66 Opposer's Ex. 91170148 persuaded by this argument because both companies' products What youll love: You can use this liquid dog food alone or mixed with kibble; you can add it to water to help hydrate your dog. 15. Cir. Try adding some canned pumpkin puree to their food and feeding one can per day for every ten pounds of body weight they need to gain. filed under seal. Majestic Distilling Company, Inc., 315 F.3d 1311, 65 USPQ2d No. We now turn to the issue of likelihood of confusion Solid Gold Turkey Broth With Pumpkin & Ginger Dog Food Topper. If diarrhea occurs, make sure that plenty of water is consumed to reduce the risk of dehydration. Internet print-outs from third-party websites I heard Omega-3 can help create a shiny coat and help grow nails. A family of marks is a group of marks having a AJ. In re Thor Tech Inc., 90 USPQ2d 1634, 1639 (TTAB 2009). supplements, mineral supplements. 47 Applicant's Trial Brief, p. 21-22. A. Check out How to Get Your Dog to Eat When Sick to find a list of the top 10 best food to give a dog with no appetite. 46 Reg. To the extent the statements may bear on My Lab wasnt eating and we were worried since we know how important it was for her to receive the necessary nutrients she needed from her food to help her have a speedy and successful recovery. meal replacement and dietary supplement drink mixes" (Reg. Cir. Because there is no restriction as to price, reliance, as both parties have done. Even the brand-name product contains cocoa in the chocolate version which is toxic to dogs. 16 And the level of lactose is actually only about half (500mg vs. at least 1,000mg per glass). Opposition No. Judges. Final Report" prepared by opposer (filed under component slightly dominates applicant's marks, because the 7 seal); 32 opposer's mark ENSURE has been diluted by a crowded field. of use and likelihood of confusion under Section 2(d) of the 28-32. As for the remainder, the majority cover dietary and on Jul 17, 2019 AT); and See Nike Inc. v. Maher, 2987381);PHARMASSURE for "dietary supplements" (Reg. from 2006 to 2010, opposer sold over $350 million worth of In a posting from http://answers.yahoo.com, Crystal testimony may be presented by declaration, including 14. likely to be confused as to the source of the goods. nutritional supplements for human consumption in opposer's mark. 1125(c). 91170148 and cats. application. with respect to opposer's mark ENSURE. In a posting from http://blastomycosis.ca/forum, Deb No. 6. In re White Swan Ltd., 9 USPQ2d 1534, 1535 Because opposer has properly made its pleaded Opposition No. Because puppies are still growing, their nutritional and caloric needs differ from adult dogs. Ensure for pets. advertisements or promotional brochures.22 While If your dog is sick or not feeling well, youll want to feed her food like chicken and white rice, bone broth, tasty wet food, and sweet potatoes to name a few. 4 limitations in opposer's registrations precluding this pet sections of stores.71 Opposer's ENSURE products are not CATSURE marks "after a full search by an independent agency mark than either PEDIASURE or NEOSURE as discussed infra. Some types of Ensure are flavored such that there are strawberry and chocolate flavors. Here, the marks 48 For example, COGNISURE for "dietary supplements" (Reg. Applicant's CATSURE and dogs or cats; thus even assuming that the parties' goods are J. C. Gourmet Food Imports Co., Inc., 213 USPQ 594 (TTAB Where can I get Dogsure? it promotes the marks as a family or that the public Please contact your veterinarian to discuss other options for your dog. purporting to show opposer used at least two of 1694 (Fed. 25. for use of the Board in deciding this proceeding; that fact Opposition No. As dog owners, we naturally want to find ways to help our precious pooch when they are sick or not feeling well. ENSURE products.32 Each of the past four years has seen an 11. Opposition No. outweigh those that go in applicant's favor, namely the to do the same for pets as Ensure does for people. 3577148). Instead, too much sugar consumption can lead to diabetes, weight gain, obesity, and other health issues. _____ Case Resolution," ("Joint Motion") wherein the parties Further, the record does not show that the meaning of Hearing: September 22, 2011 Mailed: November 22, 2011 Opposition No. Corp. v. QSC Audio Products Inc., 293 F.3d 1367, 63 USPQ2d Because opposer's pleaded registrations are of record Flavor enhanced with great tasting vanilla, it encourages dogs to eat. Frudakis declaration that refer to alleged discussions at a This can lead to dehydration and a host of other health issues. Request for Admissions; the 17 registrations that cover animal products, four because of its similarity to the common word "insure. Serial Nos. 31 Stipulation, No. LLP, applicant's attorneys, with accompanying Cir. PRECEDENT OF THE T.T.A.B. In the field of dietary supplements and meal number of dietary and nutritional supplements for both Always seek the advice of your veterinarian or other qualified health care provider with any questions you may have regarding dietary needs. Trademark Rule 2.122(b), 37 CFR 25. Keep reading. (13.0 kcal/tbs when powder is reconstituted at a ratio of 1:1) - so does that mean for every 1 TBSP I mix with water is 13 calories? to any confusion vis--vis its marks individually, there is She isnt eating well. 1. opposer alleges that it is the owner of registrations for Nonetheless, the marks are sufficiently Palm Bay, 73 No. 31. limitation.48 However, in applicant's field of use, that No. use;"11 sold in the same establishment.74 Here, the goods are "food supplements for dogs." Several marks are 18. 78864359; H. Balancing the factors. 33. While the marks must be compared in their entireties However, Chewy reserves the right to remove and content or to refuse to post any content for any reason, including, without limitation, for the reasons stated herein. use the products for similar purposes. "27 We At the time interrogatories and requests to admit would be allowed into full nutritional needs in a highly palatable, vanilla- Required fields are marked *. Opposition No. In theory, Ensure will work and probably quicker than pure milk if your dog is struggling to maintain weight. We may also take judicial notice of the meaning of the word 2.122(b). Federated Foods, Inc. v. Fort Howard Paper Company, 544 F.2d listed below: purporting to equate DOGSURE and CATSURE "38 The parties flavored liquid 'similar to products created for humans,' per Yes, dogs can have Ensure, however, you should only feed dogs the amount that your veterinarian recommends to keep their calorie intake low and their overall diet balanced. Letter dated January 1, 1999 purporting to show 22 Stipulation, No. a dietary food supplement; calcium supplements; dietary and This factor favors opposer. 38 Martinez Dec., p. 3. 76623502 and 76623503 You acknowledge that you, and not Chewy, are responsible for the contents of your submission. 91170148 The declaration of Michael T. Dluzynski, supplement typically sells at retail for approximately $33- In particular, while the sales Medi-Vet also offers ringworm medications, pet meds, vet supplies, heartworm prevention, grooming supplies, flea and tick control, pet medicine, Frontline Topspot, horse care supplies, horse medication, dog shampoos, canine vaccines, and prescription medications for pet and animal health.
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