What U.S. Registration Number caused a likelihood of confusion with the Better Blend trademark?
Better_Blend Franchise · 2024 FDDAnswer from 2024 FDD Document
6, 2021 | 90694398 |
Determinations
On August 29, 2022, a suspension notice was sent to Better Blend Nutrition, LLC, in which the assigned trademark examining attorney that suspended the registration of the trademark and that, inter alia, maintained a rejection claiming a likelihood of confusion with an existing registered mark (specifically, U.S. Registration No. 6443280 (for "BLEND NUTRITION")). Our affiliate responded to the suspension inquiry in May 2023 after signing a Coexistence Agreement with the owner of the BLEND NUTRITION mark.
There are no other currently effective material determinations of the United States Patent and Trademark Office, the Trademark Trial and Appeal Board, or any state trademark administrator or court. There are no pending infringement, opposition, or cancellation proceedings.
Litigation
There is no pending material federal or state court litigation regarding our use or ownership rights in a trademark.
Agreements
Better Blend Nutrition, LLC, our affiliate, owns the trademarks described in this Item. Under an Intercompany License Agreement between us and Better Blend Nutrition, LLC, we have been granted the exclusive right to sublicense the trademarks to franchisees throughout the United States. The agreement has no expiration. It may be modified only by mutual consent of the parties. It may be terminated by our affiliate only if (1) we materially misuse the trademarks and fail to correct the misuse, or (2) we discontinue commercial use of the trademarks for a continuous period of more than one year. The Intercompany License Agreement specifies that if it is ever terminated, your franchise rights will remain unaffected.
Better Blend Nutrition, LLC entered into a Settlement and Trademark Coexistence Agreement dated November 13, 2020, with Better Blends, LLC, a Minnesota limited liability company (as amended by an Addendum dated November 17, 2021), in which our affiliate agreed to not use the words "BETTER" and "BLEND" except in conjunction with restaurant services and direct sales of goods to consumers and not through third parties (e.g. a grocery store), and to not use its marks or promote its goods and services in a manner likely to cause confusion.
Source: Item 13 — TRADEMARKS (FDD pages 29–31)
What This Means (2024 FDD)
According to Better Blend's 2024 Franchise Disclosure Document, U.S. Registration Number 6,443,280 for the mark "BLEND NUTRITION" initially caused a likelihood of confusion with Better Blend's trademark. This led to a suspension notice sent to Better Blend Nutrition, LLC on August 29, 2022, by the trademark examining attorney. The attorney maintained a rejection of Better Blend's trademark registration due to the similarity with the existing registered mark.
To resolve this issue, Better Blend entered into a Coexistence Agreement with J&S Vision Marketing, Inc., the owner of the "BLEND NUTRITION" mark, on April 18, 2023. In this agreement, both parties acknowledged that there was no likelihood of confusion between their respective marks. They also agreed not to use their marks in a way that would cause confusion and to cooperate if any actual consumer confusion arose.
This situation highlights the importance of trademark searches and clearance before launching a franchise system. While Better Blend has taken steps to address the initial conflict, the FDD also mentions other potentially similar trademarks and food-service businesses. These include "BETTR" and businesses using "Blend" or "Blend Nutrition" in various locations. Better Blend acknowledges that these other brands may have superior rights in their local trade areas, and the company cannot guarantee exclusive rights to its mark in all geographical areas. This means a franchisee's ability to fully utilize the Better Blend trademark could be limited in certain regions due to these pre-existing marks.