IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
Case No. 007149.00065

vvvvvvvv
Application No. 77/809,126

Applicant: XL Energy Drink Corp. Trademark Attorney:
Michelle E. Dubois
Mark: XL CRANBERRY ENERGY
Design in Color Law Of?ce 107

Filed: August 20, 2009

RESPONSE TO OFFICE ACTION DATED DECEMBER 1, 2009

Dear Sir:

In response to the Of?ce Action dated December 1, 2009, please amend the above

application as follows:

No claim is made to the exclusive right to use “Cranberry Energy” apart from the

mark as shown.

14065455 1
REMARKS

In view of the above amendment and the following remarks, it is believed that this

trademark application is in condition for publication.

Section 21d) Refusal — Likelihood of Confusion

Registration of the above mark has been re?ised by the Trademark Attorney

because of an alleged likelihood of confusion with the mark “XXL”, U.S. Registration

No. 2,008,846 used for sports drinks. More speci?cally, the Trademark Attorney has

relied upon the case of In re E. I. du Pont de Nemours & Ca, 476 F.2d 1357, a well—

known case that lists principal factors to be considered when determining whether there

is likelihood of confusion between two marks. The Trademark Attorney primarily refers

only to a two-part analysis wherein the marks are compared for similarities in their

appearance, sound, connotation and commercial impression and, secondly, the respective

goods are compared to determine whether they are similar or commercially related or

travel in the same trade channels. For the record, there are a total of thirteen factors listed

in the du Pont case. The Trademark Attorney’s attention is directed to the attached very

recent case of Odom ’s Tennessee Pride Sausage, Inc. v. FF Acquisition, LL. C. found at

93 U.S.P.Q. 2d 2030. For the Trademark Attorney’s convenience, a copy (Exhibit A) of

that recent case is attached. Referring to the last page of the opinion, in a footnote, the

Federal Court sets out all the du Pont factors as follows:

“The DuPont factors are: (l) 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; (4) the
conditions under which and buyers to whom sales are made; (5) the fame of the prior
mark; (6) the number and nature of similar marks in use on similar goods; (7) the nature
and extent of any actual confusion; (8) the length of time during and conditions under

14065455 2
which there has been concurrent use without evidence of actual confusion; (9) the variety
of goods on which a mark is or is not used; (10) the market interface between applicant
and the owner of a prior mark; (211) the extent to which applicant has a right to exclude
others from use of its mark on its goods; (12) the extent of potential confusion; and (13)
any other established fact probative of the effect of use. DuPont, 476, F.2d at 1361.”
(Emphasis added)

Comparison of the Marks

In the analysis discussed by the Trademark Attorney, the comparison has been

made ley to the “XL” portion of the applicant’s trademark relative to the block letter

form of the “XXL” trademark of the cited registration. This comparison does not

compare the two marks “in their entireties”. The two marks are different. The

applicant’s mark includes “XL” only as part of its entire mark. The applicant’s mark has

only one “X”, not “XX”. It is submitted that this difference alone is signi?cant and

distinguishes the applicant’s mark from the cited mark.

In addition, the applicant’s trademark is a design mark, in color, and includes the

entire appearance of the use specimen can for the applicant’s energy drink. The applicant

is not seeking to register the “XL” portion alone in the subject application. The

applicant’s entire mark is a design and uses the additional words “CRANBERRY

ENERGY” as additional part of its entire trademark. That is, the entire word portion of

the applicant’s trademark design is “XL CRANBERRY ENERGY”. The words “XL

CRANBERRY ENERGY” are part of the entire design mark. It is submitted that in the

comparison of the marks, in their appearance, their sound, meaning, or connotation or

commercial impression, there is a vast difference between the applicant’s entire

trademark (XL CRANBERRY ENERGY AND COLOR DESIGN) and the cited mark

“XXL” in block letter form.

14065455 3
Comparison of the Goods

The products of the applicant are marketed under the mark “XL CRANBERRY

ENERGY and Color Design” to the general purchasing public, a very wide range of

potential customers. Energy drink products are widely sold at all types of grocery stores,

shopping malls, convenience stores, and the like.

In contrast, the products sold under the “XXL” mark are primarily directed to a

much smaller and very specialized market. Attached is a copy of a web page (Exhibit B)

from American Body Building, the owner of the “XXL” registration. The “XXL”

product is sold as a recovery product for “post-workout and lean mass gain”. The

product contains _9_§Q calories. The product is “equivalent to a good size meal”.

Referring to a copy (Exhibit C) of the web page entitled “About ABB”, it is pointed out

that their products have been the choice for “serious body building athletes worldwide”.

The applicant’s energy drink is a product that is widely distributed through

convenience stores to the public at large. The “XXL” product is a sports drink product

that is vastly different in kind from energy drinks and is in a very specialized market.

It is submitted that this du Pont factor, the comparison of goods, when fairly

considered, clearly distinguishes the applicant’s conventional energy drinks from the

specialized drinks sold under the mark “XXL” for sports drinks having a very high

calorie content.

Additional du Pont Factors to be Considered

Another du Pont factor is the “similarity or dissimilarity of established, likely-to—

continue trade channels”. It would appear, however, from “Where to ?nd ABB” in the

14065455 4
attached website page, that the primary source of the “XXL” product is in gyms, ?tness

centers, independent natural product and specialty retail stores. It is noted that the article

does mention the availability of such products in certain grocery and drugstore chains,

but it is submitted that it is unlikely that a 980 calorie “XXL” sports drinks would be sold

from shelf space next to energy drinks in conventional retail stores.

Another du Pont factor is “the nature and extent of any actual confusion”. The

applicant advises that it is unaware of any actual confusion between its “XL

CRANBERRY ENERGY” drink and design and “XXL” sports drinks.

Furthermore, another of the du Pont factors is “the length of time during and

conditions under which there has been concurrent use without evidence of actual

con?ision”. In the present situation, the applicant is the owner of application Serial No.

78/817,746. A copy of the TARR report (Exhibit D) for that application is attached. It

should be noted that the alleged ?rst use date is January 2003. It is fair to say that the

applicant’s energy drinks and the American Body Building “XXL” sports drinks have

been on sale in the United States for at least seven years. The applicant is unaware of any

instances of actual confusion in that time frame. No instances of actual confusion in

seven years of concurrent use without evidence of actual confusion evidences that there is

no likelihood of confusion between the applicant’s energy drinks and the “XXL sports

drinks.

In summary, it is submitted that the applicant’s trademark “XL Cranberry

Energy” including the color design, is different in sound, appearance, connotation and

commercial impression from the registered mark “XXL” for sports drinks. It is submitted

that the channels of trade for the respective energy drinks and sports drinks are totally

14065455 5
different. The marks are different. The goods are different. There is no likelihood of

confusion. It is requested that the Trademark Attorney follow the Odom ’3 case and ?nd

no likelihood of confusion. The dissimilarity of the My of the marks, coupled with

the difference in the goods, should lead to conclusion of no likelihood of confusion.

Further, the additional du Pont factor discussed above should further support a

clear case of no likelihood of confusion.

It is respectfully requested that the Examining Attorney reconsider and withdraw

the refusal of registration based on the “XXL” registration.

Pending Applications

The undersigned wishes to point out to the Trademark Attorney that the “SUTRA

XL” application Serial No. 77/015,235 and the “XTRA XL”, Serial No. 77/525,248

application are both in suspension. The reason for the suspension of the “SUTRA XL”

application is over four prior ?led applications, all of which were ?led on behalf of the

applicant herein. Similarly, a reason for the suspension of Serial No. 77/525,248 is over

four prior pending applications, three of which were ?led on behalf of the applicant

herein. The applicant has an earlier ?ling date than “XTRA XL” in the three

applications. As to Serial No. 78/635,400, this is an intent to use application which itself

is in suspension. Three of the four cited applications, again, are the present applicant’s

applications. The “XL” portion of the applicant’s mark was ?rst used in the United

States at least as early as January 1, 2003, about two years before the ?ling date of the

“XL” application Serial No. 78/635,400 for “XL”. It is submitted that all of the other

applications owned by the applicant have earlier ?ling dates than “SUTRA XL”, “XTRA

14065455 6
XL” and “XL”. Serial No. 78/635,400 was ?led more than two years after the applicant’s

?rst use date for the “XL” part of its mark.

Amendment to Disclaimer as Required

A standard format disclaimer has been provided above as required.

Mark Differs on Drawing and Specimen

The Trademark Attorney points out that the specimen ?led with the application

includes an Internet address that is not shown within the quadrilateral at the bottom of the

applicant’s mark. The website address was left out was that the web address is not truly a

part of the XL and Design trademark which is the subject of the application. It is

submitted that it would not be appropriate that a web address should be required to be

considered part of the design. Even though the applicant is willing to add the web

address, it is respectfully requested that the Trademark Attorney reconsider and Withdraw

the requirement of showing the Internet address in the quadrilateral shown on the

drawing of the applicant’s design.

Clari?cation Regarding Color Required

The rejection noted by the Trademark Attorney is that the drawing shows the

mark as being white while the claimed color is silver. In fact, the actual specimen

showing use of the mark is silver. The problem is in the reproduction of the photo of the

actual can the color comes out as appearing white. It would be erroneous to claim white

as being the color rather than silver. It is unknown how silver can be reproduced as

silver. It is requested that the Trademark Attorney reconsider and withdraw the

14065455 7
requirement to claim White as being one of the colors as opposed to the actual color

which is silver.

In View of the above, it is believed that this application is in condition for

publication. Favorable action is respectfully requested.

Respectfully submitted,

BANNER & WITCOFF, LTD.

Date: 54” “l 0 By; v. W
es V. Callahan

14065455 8
Exhibit A
Page 1 of 5

Wéétléw.
Page 1
-—- F.3d —-, 2010 WL 1030554 (C.A.Fed.), 93 U.S.P.Q.2d 2030
(Cite as: 2010 WL 1030554 (C.A.Fed.))

a 382TVII Registration
United States Court of Appeals, 382TVII(B) Proceedings Concerning Federal
Federal Circuit. Registration
ODOM’S TENNESSEE PRIDE SAUSAGE, INC., 382Tk1290 Opposition
Appellant, 382Tk1296 k. Conduct of Proceedings;
v. Hearing and Determination. Most Cited Cases
FF ACQUISITION, L.L.C., Appellee. Trademark owner failed to plead before Trademark
No. 2009-1473. Trial and Appeal Board that applicant’s mark was
confusingly similar to unregistered marks owned by
March 19, 2010. trademark owner, and thus Board was not required
to consider unregistered marks in its likelihood of
Background: Trademark owner brought action confusion analysis. Lanham Act, § 2(d), 15
challenging trademark application. The United U.S.C.A. § 1052(d).
States Patent and Trademark Office, Trademark
Trial and Appeal Board, 2009 WL 1227924, gran— [3] Trademarks 382T @1098
ted summary judgment in favor of applicant. Trade-
mark owner appealed. 3 82T Trademarks
382TIII Similarity Between Marks; Likelihood
Holding: The Court of Appeals, Mayer, Circuit of Confusion
Judge, held that there was no likelihood of confu- 382Tk1093 Relationship Between Marks
sion between trademark owner‘s mark and applic- 382Tk1098 k. Appearance, Sound, and
ant’s mark. Meaning. Most Cited Cases
Marks using boys to depict products and grocery
Af?rmed. store services were dissimilar, and thus there was
no likelihood of confusion between trademark own-
West Headnotes er’s mark and applicant’s mark, as required for
trademark owner’s opposition to registration of ap-
[1] Trademarks 382T lé?i>1081 plicant’s mark; marks differed in size and shape of
boys’ hands and feet, shape and style of their hats,
382T Trademarks and fact that applicant’s boy had piece of straw in
382TIII Similarity Between Marks; Likelihood his mouth and shoes on his feet while trademark
of Confusion owner’s boy had neither. Lanham Act, § 2(d), 15
382Tk108l k. Factors Considered in General. U.S.C.A. § 1052(d).
Most Cited Cases
To the extent that a use of a trademark owner’s [4} Trademarks 382T @1081
marks is suf?ciently distinct from the registered
marks that it could cause confusion where the re- 382T Trademarks
gistered marks do not, the use represents a separate, 382TIII Similarity Between Marks; Likelihood
unregistered mark for likelihood of confusion pur- of Confusion
poses. Lanham Act, § 2(d), 15 U.S.C.A. § 1052(d). 382Tk1081 k. Factors Considered in General.
Most Cited Cases
[2] Trademarks 382T @1296 The DuPont factors used to test for likelihood of
confusion of marks are: (l) the similarity or dissim-
3 82T Trademarks ilarity of the marks in their entireties as to appear—

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Page 2
— F.3d —-, 2010 WL 1030554 (C.A.Fed.), 93 U.S.P.Q.2d 2030
(Cite as: 2010 WL 1030554 (C.A.Fed.))

ance, sound, connotation and commercial impres- Scott W. Johnston, Merchant & Gould PC, of Min-
sion, (2) the similarity or dissimilarity and nature of neapolis, MN, argued for appellee.
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 Before MAYER, GAJARSA, and LINN, Circuit
established, likely-to-continue trade channels, (4) Judges.
the conditions under which and buyers to whom
sales are made, (5) the fame of the prior mark, (6)
the number and nature of similar marks in use on MAYER, Circuit Judge.
similar goods, (7) the nature and extent of any actu-
al confusion, (8) the length of time during and con- *1 Odom’s Tennessee Pride Sausage, Inc.
ditions under which there has been concurrent use (“Odom’s”) appeals the decision of the United
without evidence of actual confusion, (9) the vari- States Patent and Trademark Of?ce, Trademark
ety of goods on which a mark is or is not used, (10) Trial and Appeal Board granting summary judg—
the market interface between applicant and the ment in favor of FF Acquisition, L.L.C. (“FF”) and
owner of a prior mark, (11) the extent to which ap- dismissing Odom‘s opposition to a trademark ap-
plicant has a right to exclude others from use of its plication ?led by FF. Odom’s Tenn. Pride Sausage,
mark on its goods, (12) the extent of potential con— Inc. v. FF Acguisition, L.L.C., Opposition No.
fusion, and (13) any other established fact probative 91/182,173, 2009 WL 1227924 (TTAB Apr. 17,
of the effect of use. Lanham Act, § 2(d), 15 2009). Odom’s opposed the registration of FF’s
U.S.C.A. § 1052(d). ‘ mark, alleging likelihood of confusion with its own
marks. We af?rm.
[5] Trademarks 382T ($331081

382T Trademarks BACKGROUND
382TIII Similarity Between Marks; Likelihood
of Confusion Odom’s produces food items, such as sausages and
.382Tk1081 k. Factors Considered in General. breakfast sandwiches, distributed primarily through
Most Cited Cases retail grocery stores. Over the past forty years it has
A single likelihood of confusion factor may be dis- obtained a number of trademark registrations de-
positive in a likelihood of confusion analysis, espe- picting farm boys to designate its products?” The
cially when that single factor is the dissimilarity of farm boys in the various marks resemble the ex—
the marks. Lanham Act, § 2(d), 15 U.S.C.A. § amples below.
1052(d).
Marsha G. Gentner, Jacobson Holman PLLC, of
Washington, DC, argued for appellant.

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Page 3
— F.3d —-, 2010 WL 1030554 (C.A.Fed.), 93 U.S.P.Q.2d 2030
(Cite as: 2010 WL 1030554 (C.A.Fed.))

FF does business as Farm Fresh Supermarket and application for a new mark for use in its retail gro-
operates grocery stores. In 1983, FF registered a cery store services. See US. Trademark Applica-
design of the head and shoulders of a farm boy with tion Serial No. 77/148,503 (Apr. 4, 2007). The new
a piece of straw in his mouth to designate its super- mark uses the head and shoulders of the farm boy
market services. See US. Trademark Registration depicted in the existing mark and added the re‘
No. 1,222,958 (Jan. 4, 1983). It altered the design mainder of the boy’s body, as reproduced here.
in a 2003 renewal of the registration, but the mark
still depicted the upper portion of a farm boy with a
piece of straw in his mouth. In 2007, FF ?led an

Odom’s opposed FF’s new mark on the ground that board therefore granted summary judgment in favor
it resembles the marks registered and used by of FF and dismissed Odom’s opposition. Odom‘s
Odom’s and would therefore be likely to cause pro- appeals. We have jurisdiction pursuant to 28 U.S.C.
spective consumers to be confused, mistaken, or de- § 1295(a)(4)(B).
ceived within the meaning of Section 2(d) of the
Lanham Act. 15 U.S.C. § 1052(d) (2006). FF
moved for summary judgment, arguing that there is DISCUSSION
no likelihood of confusion between the marks. The
board found that FF’s applied-for mark was so dis- Summary judgment is appropriate where the
similar to Odom’s pleaded marks that no likelihood movant has established that there is no genuine is-
of confusion could exist as a matter of law. The sue as to any material fact and that the movant is
entitled to judgment as a matter of law. Lincoln

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Page 4
— F.3d –—-, 2010 WL 1030554 (C.A.Fed.), 93 U.S.P.Q.2d 2030
(Cite as: 2010 WL 1030554 (C.A.Fed.))

Logs Ltd. v. Lincoln Pre—Cut Log Homes, Inc., 971 [3] Suf?cient distinctions exist between the re—
F.2d 732, 734 (Fed.Cir.l992). We review the gistered marks considered by the board and the ap-
board’s decision to grant summary judgment de plied-for mark to create a different commercial im-
novo. Id. pression. The marks differ in the size and shape of
the boys’ hands and feet, the shape and style of their
[1] As an initial matter, Odom’s argues that the hats, and the fact that FF’s boy has a piece of straw
board’s analysis inappropriately considered only its in his mouth and shoes on his feet while Odom’s
registered marks and failed to consider uses of its has neither. Odom’s complains that the board inap-
marks that differ in some respect from what is de— propriately dissected the marks into these compon-
picted in the registrations-in particular Odom’s Ten- ents in performing its analysis, but it is these indi-
nessee Pride Farmboy mascot. According to vidual aspects that collectively create a difference
Odom’s, the differences between the registered in the overall impressions made by the marks. In
marks and its actual uses of the marks “are highly re Nat’] Data Corp, 753 F.2d 1056, 1058
signi?cant” in the context of the similarity analysis. (Fed.Cir.1985) (“[I]n articulating reasons for reach-
To the extent that a use of Odom’s marks is suf?- ing a conclusion on the issue of confusion, there is
ciently distinct from the registered marks that it nothing improper in stating that, for rational reas-
could cause confusion where the registered marks ons, more or less weight has been given to a partic-
do not, the use represents a separate, unregistered ular feature of a mark….”). As the board correctly
mark. In re Int’l Flavors & Fragrances, Inc, 183 concluded, the visual distinctions between the
F.3d 1361, 1.368 (Fed.Cir.1999) (“[T]he mark, as marks at issue here create unquestionably different
registered, must accurately re?ect the way it is used commercial impressions, thereby precluding a ?nd-
in commerce so that someone who searches the re- ing of likelihood of confusion.
gistry for the mark, or a similar mark, will locate
the registered mark”). [4][5] Odom’s also argues that the board erred in
basing its decision on the dissimilarity of the marks
*2 [2] While it is correct that a mark need not be re- alone and not giving appropriate consideration to
gistered in order to grant its owner trademark pro- the other factors constituting the test for likelihood
tection, Odom’s did not plead before the board that of confusion set forth in In re E.I. DuPont
FF’s applied—for mark was confusingly similar to DeNemours & Ca, 476 F.2d 1357, 1361 (CCPA
unregistered marks owned by Odom’s. Instead, its 1973). EN“ However, a single DuPont factor
notice of opposition discussed only registered “may be dispositive in a likelihood of confusion
marks. The board was therefore not required to con- analysis, especially when that single factor is the
sider any unregistered marks in its analysis. Odom’s dissimilarity of the marks.” Champagne Louis
argues that it relied on the mascot in its response in Roederer, SA. v. Delicato Vineyards, 148 F.3d
opposition to FF’s motion for summary judgment 1373, 1375 (Fed.Cir.l998). Therefore, even if all
and that the board should have deemed the plead- other relevant DuPont factors were considered in
ings amended by consent of the parties. The board‘s Odom’s favor, as the board stated, the dissimilarity
procedures allow it to deem the pleadings to have of the marks was a suf?cient basis to conclude that
been amended to include unpled issues under cer— no confusion was likely.
tain circumstances, but the language is permissive
and does not require the board to do so. Trademark
Trial and Appeal Board Manual of Procedures (5 CONCLUSION
528.07(b) (“[T]he Board may deem the pleadings to
have been amended, by agreement of the parties, to Accordingly, the decision of the board is af?rmed.
allege the matter.” (emphasis added».
AFFIRMED

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Page 5
—– F.3d —-, 2010 WL 1030554 (C.A.Fed.), 93 U.S.P.Q.2d 2030
(Cite as: 2010 WL 1030554 (C.A.Fed.))

FN* In its Notice of Opposition, Odom’s
relied on eleven trademark registrations,
U.S. Trademark Registration Nos. 885,136
(Jan. 27, 1970); 887,577 (Mar. 10, 1970);
1,859,824 (Oct. 25, 1994); 1,861,064
(Nov. 1, 1994); 2,653,431 (Nov. 26, 2002);
2,850,472 (June 8, 2004); 3,019,156 (Nov.
29, 2005); 3,019,210 (Nov. 29, 2005);
3,031,104 (Dec. 20, 2005); 3,200,845 (Jan.
23, 2007); and 3,200,875 (Jan. 23, 2007).

FN** The DuPont factors are: (l) the sim—
ilarity or dissimilarity of the marks in their
entireties as to appearance, sound, con-
notation and commercial impression; (2)
the similarity or dissimilarity and nature of
the goods or services as described in an ap-
plication 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; (4) the
conditions under which and buyers to
whom sales are made; (5) the fame of the
prior mark; (6) the number and nature of
similar marks in use on similar goods; (7)
the nature and extent of any actual confu-
sion; (8) the length of time during and con—
ditions under which there has been concur-
rent use without evidence of actual confu-
sion; (9) the variety of goods on which a
mark is or is not used; (10) the market in-
terface between applicant and the owner of
a prior mark; (11) the extent to which ap-
plicant has a right to exclude others from
use of its mark on its goods; (12) the extent
of potential confusion; and (13) any other
established fact probative of the effect of
use. DuPont, 476 F.2d at 1361.

C.A.Fed.,2010.
Odom’s Tennessee Pride Sausage, Inc. v. FF Ac-
quisition, L.L.C.
— F.3d —-, 2010 WL 1030554 (C.A.Fed.), 93
U.S.P.Q.2d 2030

END OF DOCUMENT

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Exhibit B
Extreme XXL — $80.00 : American Body Building Page 1 of 2

Mi?li?? 39B”! B?ii?l?? PR?EilCTS @
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To get big, you’ve got to eat big. Problem is: if you’re not very
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Exhibit C
About ABB: American Body Building Page 1 of 2

MERE! 391}? ?i?i?l?? EREBiSETS
ANYTIME / ENERGY / RECOVERY / Hl—PRO’

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athletes, from all walks of life, seek. Whether your goals are POWER & RECOVERY,
DlET & ENERGY, HI-PROTEIN NUTRITION, or BETTER HYDRATION, ABB has a
product designed to suit your individual needs. Simply put, “You Train, We’ll do the
Rest.”

Customer Satisfaction

http://www.americanbodybuilding.com/about.php 4/27/2010
About ABB: American Body Building Page 2 of 2

quality is evident throughout the entire manufacturing process. Before a single machine
is turned on, we carefully select vendors who supply premium raw materials. All vendors must provide
(COA) for each raw material. As a continued measure of quality, these certi?cates are then veri?ed thi
and independent laboratory testing. Highly sophisticated equipment con?rms the purity and potency 0’
our labels. Quality assurance professionals make routine checks on all storage, blending, and product
?nal inspections daily. Together, these procedures allow ABB and its parent company, Optimum Nutri‘
unparalleled sports nutrition supplements under the strictest quality control standards known as currer
Practices (cGMPs). I

Where to Find ABB ABB produc
the United 5
gyms, ?tness centers, independent natural product & specialty retail stores — including GNC and Vitan
grocery and drug store chains. You can also ?nd ON and ABB products at most online retailers, and ti
70 countries.

When it comes to quality, selection, taste, ease of use, and overall satisfaction, sophisticated athletes
and everyone else.

ABB -— THE Force in the Gym. Since 1985

http://www.americanbodybuilding.com/about.php 4/27/2010
Exhibit D
Latest Status Info Page 1 of 4

Thank you for your request. Here are the latest results from the TARR web server.

This page was generated by the TARR system on 2010—05-17 12:46:22 ET

Serial Number: 78817746 Assignment Information Trademark Document Retrieval

Registration Number: (NOT AVAILABLE)

XL ENERGY DRINK

(words only): XL ENERGY DRINK

Standard Character claim: Yes

Current Status: Further action on the application has been suspended.

Date of Status: 2009-12—08

Filing Date: 2006—02—17

Filed as TEAS Plus Application: Yes

Currently TEAS Plus Application: Yes

Transformed into a National Application: No

Registration Date: (DATE NOT AVAILABLE)

Register: Principal

Law Office Assigned: LAW OFFICE 114

Attorney Assigned:
CORDOVA RAUL

Current Location: M50 -TMO Law Of?ce 114

Date In Location: 2009-12-08

LAST APPLICANT(S)/OWNER(S) OF RECORD
1. XL ENERGY DRINK CORP.

http://tarr.uspto.gov/tarr?regser=seria1&entry=788 1 7746&action=Request+Status 5/1 7/2010
Latest Status Info Page 2 of 4

Address:
XL ENERGY DRINK CORP.
521 5TH AVENUE 28TH FLOOR
NEW YORK, NY 10175
United States
Legal Entity Type: Corporation
State or Country of Incorporation: New York

GOODS A /OR SERVICES

International Class: 032
Class Status: Active
Energy drinks
Basis: 1(a)
First Use Date: 2003-01-01
First Use in Commerce Date: 2003—01-01

(NOT AVAILABLE)

PROSECUTION HISTOA Y

NOTE: To view any document referenced below, click on the link to “Trademark Document
Retrieval” shown near the top of this page.

2009—12-08 — Report Completed Suspension Check Case Still Suspended

2009-12-08 — Assigned To Examiner

2009-09-16 – Automatic Update Of Assignment Of Ownership

2009-09-09 – Automatic Update Of Assignment Of Ownership

2009-06-08 — Report Completed Suspension Check Case Still Suspended

2008—12-08 – Report Completed Suspension Check Case Still Suspended

2008-06-06 – Report Completed Suspension Check Case Still Suspended

2008-02-14 – Assigned To Examiner

2007-12-06 — Noti?cation Of Letter Of Suspension E-Mailed

http://tarr.uspto. gov/tarr?regser=serial&entry=788 1 7746&action=Request+Status 5/ 1 7/201 0
Latest Status Info Page 3 of 4

2007-12-06 — LETTER OF SUSPENSION E-MAILED

2007-12-06 — Suspension Letter Written

2007-07-25 – Attorney Revoked And/Or Appointed

2007-07—25 – TEAS Revoke/Appoint Attorney Received

2007-07-04 – Automatic Update Of Assignment Of Ownership

2007-06-06 – LETTER OF SUSPENSION E-MAILED

2007-06-06 – Suspension Letter Written

2007-05-09 – Teas/Email Correspondence Entered

2007-05-09 — Communication received from applicant

2007-05-09 — Assigned To LIE

2007-04—03 – Attorney Revoked And/Or Appointed

2007-04—03 – TEAS Revoke/Appoint Attorney Received

2007—04—03 – TEAS Response to Of?ce Action Received

2007-04-03 — Petition To Revive—Granted

2007—04—03 – TEAS Petition To Revive Received

2007—03-07 – Abandonment Notice Mailed – Failure To Respond

2007—03—07 – Abandonment – Failure To Respond Or Late Response

2006—08~09 – Non—?nal action e—mailed

2006—08-09 – Non-Final Action Written

2006—08-08 — Assigned To Examiner

2006—02-24 – New Application Entered In Tram

ATTORNEY/CORRESPONDENT INFORMATION

Attorney of Record
James V. Callahan

Correspondent
James V. Callahan

http ://tarr.uspto.gov/tarr?regser=serial&entry=788 I 7746&action==Request+Status 5/1 7/20 10
Page 4 of 4
Latest Status Info

Banner & Witcoff, Ltd.
Suite 3000
10 South Wacker Drive
Chicago IL 60606
Phone Number: 3 1 2—463-5 000
Fax Number: 312-463-5001

&e nt ry =7 8 8 1 77 46 &a ct io n= Re qu es t+ St at us 5/17/20 10
http://tarr.uspto.g0v/tarr?regser=seria1