Are there any pending infringement proceedings related to 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.
Better Blend Nutrition, LLC entered into a Coexistence Agreement dated April 18, 2023, with J&S Vision Marketing, Inc. ("J&S"). J&S owns U.S. Trademark Registration No. 6,443,280 for use of the mark "BLEND NUTRITION". The parties agreed that there was no likelihood of confusion between their respective marks. Each party agreed to not use its marks or promote its goods and services in a manner likely to cause confusion, and to cooperate in the event of actual consumer confusion.
Protection of Rights
We protect your right to use the principal trademarks listed in this Item, and we protect you against claims of infringement or unfair competition arising out of your use of the trademarks, to the extent described in this section.
The franchise agreement obligates you to notify us of the use of, or claims of rights to, a trademark identical to or confusingly similar to a trademark licensed to you. The franchise agreement does not require us to take affirmative action when notified of these uses or claims. We have the right to control any administrative proceedings or litigation involving a trademark licensed by us to you.
Source: Item 13 — TRADEMARKS (FDD pages 29–31)
What This Means (2024 FDD)
According to Better Blend's 2024 Franchise Disclosure Document, there are no pending infringement proceedings regarding their trademark. However, a suspension notice was sent to Better Blend Nutrition, LLC on August 29, 2022, by the trademark examining attorney. The notice maintained a rejection based on a likelihood of confusion with an existing registered mark, U.S. Registration No. 6443280 for "BLEND NUTRITION". Better Blend responded to the suspension inquiry in May 2023 after signing a Coexistence Agreement with the owner of the BLEND NUTRITION mark.
Better Blend Nutrition, LLC entered into a Settlement and Trademark Coexistence Agreement dated November 13, 2020, with Better Blends, LLC, which was amended on November 17, 2021. In this agreement, Better Blend's affiliate agreed to certain restrictions on using the words "BETTER" and "BLEND". Specifically, they can only be used in conjunction with restaurant services and direct sales to consumers, not through third parties like grocery stores. They also agreed not to use their marks in a way that would likely cause confusion.
Better Blend Nutrition, LLC also entered into a Coexistence Agreement dated April 18, 2023, with J&S Vision Marketing, Inc. ("J&S"), who owns U.S. Trademark Registration No. 6,443,280 for the mark "BLEND NUTRITION". Both parties agreed that there was no likelihood of confusion between their marks and agreed not to use their marks in a manner likely to cause confusion, and to cooperate if actual consumer confusion occurs.
Better Blend is aware of a prior trademark, "BETTR", that may be considered similar, covering various fruit and vegetable beverages. They also acknowledge several food-service businesses using "Blend" in their names in Massachusetts, Nevada, and Texas, as well as "Blend Smoothie and Salad Bar" in New York. These businesses may have superior rights in their local areas, and Better Blend cannot guarantee exclusive rights to their mark in all geographical areas. Better Blend does not have a federal registration for their principal trademark, which means the trademark does not have as many legal benefits and rights as a federally registered trademark. If their right to use the trademark is challenged, franchisees may have to change to an alternative trademark, which may increase their expenses.