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

gov
ESTTA Tracking number: ESTTA846379
Filing date: 09/17/2017
IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD

Notice of Opposition
Notice is hereby given that the following party opposes registration of the indicated application.

Opposer Information
Name Harvest Dispensaries, Cultivations & Production Facilities LLC
Granted to Date 09/17/2017
of previous ex-
tension
Address 627 South 48th Street, Suite 100
Tempe, AZ 85281
UNITED STATES

Attorney informa- Sean B. Berberian

tion White Berberian PLC
60 E. Rio Salado Parkway, Suite 900
Tempe, AZ 85281
UNITED STATES
Email: sberberian@wbazlaw.com
Phone: 480-366-5933

Applicant Information
Application No 87134385 Publication date 03/21/2017
Opposition Filing 09/17/2017 Opposition Peri- 09/17/2017
Date od Ends
Applicant Harvest On Geary, Inc.
1565 Madison Street, Ste. B
Oakland, CA 94612
UNITED STATES

Goods/Services Affected by Opposition

Class 044. First Use: 2015/02/15 First Use In Commerce: 2015/02/15
All goods and services in the class are opposed, namely: medical cannabis resources, namely,
providing information pertaining to the benefits of medicinal use of cannabis

Grounds for Opposition

Priority and likelihood of confusion Trademark Act Section 2(d)
No bona fide intent to use mark in commerce for Trademark Act Section 1(b)
identified goods or services
Dilution by blurring Trademark Act Sections 2 and 43(c)
Dilution by tarnishment Trademark Act Sections 2 and 43(c)
Applicant not rightful owner of mark for identified Trademark Act Section 1
goods or services
Deceptiveness Trademark Act Section 2(a)
Fraud on the USPTO In re Bose Corp., 580 F.3d 1240, 91 USPQ2d
 1938 (Fed. Cir. 2009)
Other Prior use by oppossers trademarks: 5,154,042;
5,279,159

Marks Cited by Opposer as Basis for Opposition

U.S. Registration 5154042 Application Date 01/22/2016
No.
Registration Date 03/07/2017 Foreign Priority NONE
Date
Word Mark HARVEST
Design Mark

Description of NONE
Mark
Goods/Services Class 035. First use: First Use: 2012/06/02 First Use In Commerce: 2013/04/02
Retail pharmacy services in the field of botanical medicines

U.S. Registration 5279159 Application Date 01/25/2016

No.
Registration Date 09/05/2017 Foreign Priority NONE
Date
Word Mark HARVEST
Design Mark

Description of The mark consists of a circular logo, reminiscent of a windmill, using a variation
Mark of grey, yellow, and orange. The stylized word "HaRVest" appears in the color
 black or dark grey. The color white appears as background and is not part of the
mark.
Goods/Services Class 035. First use: First Use: 2012/06/02 First Use In Commerce: 2013/04/02
Retail pharmacy services in the field of botanical medicines

Attachments 86883970#TMSN.png( bytes )

86885215#TMSN.png( bytes )
Harvest Notice of Opposition - Exhibits.pdf(271126 bytes )
Harvest Notice of Opposition - 9-17-17.pdf(401999 bytes )

Signature /Sean B. Berberian/

Name Sean B. Berberian
Date 09/17/2017
Exhibit A
Exhibit B
 IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
TRADEMARK TRIAL AND APPEAL BOARD

Harvest Dispensaries, Cultivations & )

Production Facilities, LLC ) Trademark Application
)
) Mark: Harvest
Opposer, )
) Serial No. 87134385
v. )
) Filed: August 10, 2016
Harvest On Geary, Inc. )
) Published: March 21, 2017
)
Applicant. ) Opposition No: ___________________
)

NOTICE OF OPPOSITION

Harvest Dispensaries, Cultivations & Production Facilities, LLC (“Harvest” or

“Opposer”) is a limited liability company duly organized and existing under the laws of

the state of Arizona with its principal place of business located at 627 South 48th Street,

Suite 100, Tempe, AZ 85281. Harvest hereby opposes the registration of the proposed

mark HARVEST by Harvest on Geary, Inc. (“HOG” or “Applicant”) that is the subject of

the application Serial No. 87134385, published in the Official Gazette on March 21,

2017, and request that registration to Applicant be refused. HOG’s registration attempt is

improper, and Harvest will be damaged if the registration is not refused. This Notice of

Opposition is timely pursuant to the extension granted.

As grounds for opposition, Harvest alleges as follows:

1. Opposer’s use of the HARVEST mark long predates HOG’s first use. HOG

knew of and disregarded Opposer Harvest’s prior use of the HARVEST mark. Opposer
Harvest’s application for registration of the HARVEST standard and stylized trademarks

were already pending long before HOG filed its application. Opposer’s trademarks are

now rightfully registered with the USPTO. HOG’s registration attempt under a misleading

class and purpose is improper and must be rejected.

2. Opposer Harvest’s business consists of retail dispensaries, cultivation

facilities, and production facilities in botanical medicines. Harvest and its subsidiaries

operate or own botanical medicine facilities in Arizona, Maryland, Nevada, and Illinois.

Harvest and its subsidiaries also own botanical medicine businesses in several other states

that are in varying stages of development and operation, including the state of California.

3. Opposer Harvest’s businesses manufacture and sell botanical medicines,

consult customers on such medicines, and provide education regarding such botanical

medicines (by educational materials and a medical director at each retail dispensary).

4. Opposer Harvest’s business began in 2011 in Arizona. It began using the

HARVEST mark no later than June 2, 2012. And Opposer Harvest opened its first retail

dispensary in Tempe in April 2013, using the HARVEST mark (both standard and

stylized).

5. Harvest’s stylized mark is yellow, orange, grey, and black. It consists of a

circular logo, reminiscent of a windmill or the sun, using a variation of its colors. The

stylized name HARVEST appears in dark grey or black in all capital letters (except the

vowels are lower case).

6. On or about January 25, 2016, Opposer Harvest filed its USPTO trademark

applications. Opposer Harvest successfully registered its standard and stylized marks with

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the USPTO: Reg. No. 5154042 on March 7, 2017, attached as Exhibit A; and Reg. No.

5279159 on September 5, 2017, attached as Exhibit B.

HOG Misappropriated Opposer Harvest’s Marks

and Attempted Registration with the USPTO

7. On or about February of 2014, Marty Higgins, now chief executive officer

of HOG, was referred and introduced to Harvest CEO, Steven White. A business

consultant from their same botanical medicine industry introduced Mr. Higgins to Mr.

White to discuss possible business between Opposer Harvest and Higgins.

8. On or about February 22, 2014, Mr. Higgins flew to Arizona to meet Mr.

White and tour Opposer Harvest’s Tempe retail dispensary. Mr. Higgins observed and

learned about Harvest’s name, style, design, and concepts. Mr. White and Mr. Higgins

also discussed possible business together.

9. Soon thereafter, Mr. Higgins informed Mr. White that he was not interested

in doing a business deal with Opposer Harvest.

10. Opposer thought this was the last it would hear of Mr. Higgins. However, in

or around February 2016, Mr. Higgins and HOG opened two botanical medicine retail

dispensaries, using 1) the identical HARVEST name, 2) the identical reference to locations

as “Harvest of [location]” just as Opposer Harvest uses for each of its locations, 3) a logo

very similar to Opposer Harvest’s stylized HARVEST mark, and 4) similar business

concepts and styles as used by Opposer Harvest. HOG had directly and intentionally

misappropriated the marks used by Opposer Harvest.

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 11. When word of HOG’s actions began to spread, the individual who introduced

Higgins and White contacted Higgins by email, expressing concern about HOG’s use of

Opposer Harvest’s name and a similar logo. Higgins responded by email that the

similarities constituted an “oversight” on his part and said he was “working on solutions

ASAP.”

12. Yet, Higgins and HOG marched forward misappropriating and infringing on

Opposer Harvest’s marks.

13. On or about August 10, 2016, HOG filed an application with the USPTO for

a stylized Trademark for HARVEST, with a very similar yellow circular starburst-style

logo. However, in an intentional attempt to disguise its wrongful use and to avoid Opposer

Harvest’s priority, HOG claimed the application was for “medical cannabis resources,

namely, providing information pertaining to the benefits of medicinal use of cannabis.”

14. HOG’s application to the USPTO was a fraud upon the USPTO by falsely

declaring that no other person has the right to use the mark in commerce. HOG knew

Opposer Harvest had the right to use the mark in commerce prior to HOG, and that Opposer

Harvest provided similar services and products as HOG—and much more.

15. HOG’s application with the USPTO was filed August 10, 2016 and published

for opposition in the Official Gazette on March 21, 2017, Serial No. 87134385. HOG

alleged its first use was February 15, 2015.

16. Opposer Harvest’s first use (at least June 2, 2012) predates HOG’s alleged

first use by almost three years. Opposer Harvest has used the HARVEST mark in

4
association with its goods and services continually in commerce since at least April of

2013. Opposer Harvest has priority.

17. HOG’s proposed mark name is identical to Opposer Harvest’s mark. HOG’s

proposed logo and stylized mark are nearly identical to Opposer’s Harvest’s registered

stylized mark. HOG’s proposed mark is confusingly similar in sound, meaning and

appearance to Opposer Harvest’s registered mark. HOG’s registration and use of its mark

would create confusion, mistake, or deception in the minds of prospective purchasers as to

the origin or source of HOG’s and Opposer Harvest’s goods and services.

18. HOG’s products and services are the same, closely related to and/or are in

the natural zone of expansion of Opposer Harvest’s goods. Both HOG’s and Opposer

Harvest’s goods are advertised online on their respective websites and the botanical

medicine industry websites.

19. Customers and other businesses in the botanical medicine industry are likely

to mistakenly believe that HOG’s services are sponsored by, authorized, endorsed,

affiliated with or otherwise approved by Opposer Harvest because HOG’s proposed mark

is confusingly similar to Opposer Harvest’s mark.

20. For the foregoing reasons, the registration sought by Applicant is contrary

to the provisions of Section 2 of the Lanham Act, and Harvest would be damaged thereby.

21. Wherefore, Harvest respectfully requests that registration of HOG’s

proposed mark be refused registration and that this Opposition be sustained in favor of

Opposer Harvest.