March 9, 2015

VIA ELECTRONIC MAIL, UPS, AND EDIBLE ARRANGEMENTS

RE: International Womens Day &

Dear Friend,
This letter is in response to your Feb 23, 2015 letter sent on behalf of Bear Naked, Inc.
(GRUMPY BEAR). As you may know, we represent Naked Granola, LLC (TEAM AWESOME) in
regards to its intellectual property & trademark matters. On occasion, we also provide TEAM
AWESOME with babysitting & basic household plumbing services.
Thanks for your letter! We at TEAM AWESOME really love hearing constructive comments
about our Naked Granola products from our dear friends all over these United States of
America. As you may know, our delicious granola flavors are inspired by family trips to amazing
locations across the country. And guess what? the suggestions outlined in your letter have
inspired us to create an all-new flavor!
Heres a quick preview of the package design. What do you think?
(Please dont be too harsh, its just a rough draft)

NAKED GRANOLA, LLC | 1-800-530-1712 | [email protected] | NAKEDGRANOLA.COM

This flavor is still just in the early stages of product development. Many things need to happen
before we launch a new product, including evaluating market demands and formulating the
delicious flavors. This process may be streamlined here, though, since Taste of Legal already
contains an excess of Demands and the product will likely be quite Bland & Tasteless.
Its still a work in progress.
Anyhoo Happy International Womens Day!
Did you know that we at TEAM AWESOME (Naked Granola) commit a minimum of 1% of our Net
Sales to alleviating the avoidable human suffering of starvation & hunger?
NAKED GRANOLA, LLC | 1-800-530-1712 | [email protected] | NAKEDGRANOLA.COM

Check this out!

NAKED GRANOLA, LLC | 1-800-530-1712 | [email protected] | NAKEDGRANOLA.COM

And speaking of International Womens Day, here are just a few of the womens agricultural
projects around the world that weve supported recently.

In fact, were so devoted to reducing local & global hunger and empowering communities for
nutritious futures, that we make our charitable contributions based on Net Sales: Thats our
revenue BEFORE we consider our cost of goods. So if the price of our ingredients rises, were
still contributing the same amount. Most times, that amounts to less margin for us. But hey, all
of us have a shared obligation to be good people in this world and to share the resources that
were so blessed to have. So we choose to be caring, sharing people first, before all else.

Oh, and about the trademark issue you mentioned in your previous correspondence
Please note that we at Naked Granola (TEAM AWESOME) are very careful in matters relating
to intellectual property and would not knowingly adopt a mark that is likely to cause confusion in
the marketplace. Consequently, serious consideration has been given to the allegations in your
Feb 23, 2015 letter. After having done so, however, we are thoroughly convinced that our use
of Naked Granola does not infringe on your clients trademark rights.
Furthermore, TEAM AWESOME denies each and every allegation set forth in your Feb 23,
2015 Cease & Desist letter. TEAM AWESOME asserts that the Naked Granola mark as filed
with the USPTO #86/513,081 (NAKED GRANOLA) is distinctive, does not infringe upon the
GRUMPY BEAR marks enumerated in your previous correspondence (BEAR NAKED), and that
there is no evidence or expectation of confusion in the marketplace. TEAM AWESOME also
asserts that our use of NakedGranola.com is in good faith, legitimate, and does not constitute
cybersquatting.
The reasons for these assertions are quite numerous (and we aim to minimize the amount of
paper utilized by our business correspondences) so we will only discuss a few.
NAKED GRANOLA, LLC | 1-800-530-1712 | [email protected] | NAKEDGRANOLA.COM

CyberSquatting

TEAM AWESOMEs use of the NakedGranola.com domain name does not constitute
cybersquatting as set forth in the Anticybersquatting Consumer Protection Act. With regards
to these allegations, we have consulted with well-known expert advisors on internet matters,
Mr. Google & Mrs. Siri. TEAM AWESOME asserts that the use of NakedGranola.com is in good
faith since it: utilizes our legitimate mark, does not infringe upon the marks of GRUMPY BEAR,
does not divert or mislead customers, and we have no history or present intention of selling the
transfer of this domain to any party, including GRUMPY BEAR, since this domain is used to sell
products for our legitimate, commercial business.

Furthermore, there is no evidence that the designation Naked Granola has value to GRUMPY
BEAR or supports the BEAR NAKED trademarks. NakedGranola.com was registered many years
after the founding of GRUMPY BEAR and the establishment/registration of the BEAR NAKED
marks. It can be expected that a company with the size & resources as GRUMPY BEAR would
register all domain names related to their registered marks. If the phrase Naked Granola is
valuable and associated with the BEAR NAKED marks, were puzzled as to why, at the negligible
cost of $11.95 per year, GRUMPY BEAR did not register the domain name. Its a much more cost
effective solution than drafting and sending Cease & Desist letters. (Can you believe that
stamps cost $.48 these days?)

Further furthermore, the website BearNakedGranola.com, which is NOT registered or operated

But, because we (GRUMPY BEAR & TEAM AWESOME) are friendly competitors in the
marketplace, we would be happy to assist you in drafting a letter to the owners of
BearNakedGranola.com, if you desire complete with well-designed images and carefully
selected, professional typefaces.
(We highly recommend Comic Sans 12 point for all important, legal correspondences)

NAKED GRANOLA, LLC | 1-800-530-1712 | [email protected] | NAKEDGRANOLA.COM

Similarity of Mark
TEAM AWESOMEs mark is not similar to GRUMPY BEARs BEAR NAKED marks and will not
cause customer confusion. In your previous letter, you claim that our use of Naked Granola is
likely to cause confusion in the marketplace with [GRUMPY BEAR]s well-known BEAR NAKED
trademarks.
TEAM AWESOME takes this allegation very seriously and does understand the importance of a
thorough investigation into the possibility of consumer confusion. We have found that that
there is little possibility that consumers would be confused into believing that there is any
connection, endorsement, or association between the products made by GRUMPY BEAR & TEAM
AWESOME.

The trade dress and overall look & feel of the respective products and packaging are quite
dissimilar, very different, in fact. The color combinations, name placement, product naming
style, art, materials, and almost every other aspect are clearly distinguishable.
and given the sophisticated nature of the target audience (have you ever met a granola
customer who didnt read the back of the package?), it is inconceivable that there would be
confusion between the products made by GRUMPY BEAR & TEAM AWESOME.

(Legal Banter Aside: We advise against performing a Google Image search for Bear Naked.
This phrase seems to have taken on a second-secondary meaning. And were mildly traumatized.)

Please refer to Figure A. below, presenting side-by-side images of a sample product (with
marks) for both GRUMPY BEAR & TEAM AWESOME. These two products were selected
because they are comparable.
(We define comparable in this instance as: they both contain the color blue, and granola)

NAKED GRANOLA, LLC | 1-800-530-1712 | [email protected] | NAKEDGRANOLA.COM

At first glance, there does not appear to be significant similarities to warrant the allegation of
infringement based on likely consumer confusion.
But upon further review, there does not appear to be significant similarities to warrant the
allegation of infringement based on likely consumer confusion.
Due to the expense, reputation, and importance of TEAM AWESOME & GRUMPY BEARs
products, a consumer will take great care in selecting an item for purchase. Through this great
care when making a purchasing decision, consumers will be less likely to be confused. (Not that
theres even the merest expectation of confusion in the first place but these letters are
supposed to contain statements such as that.)
As part of our commitment to disproving these allegations, we speculate on the possibility that
there may be moments when consumers exhibit less consumer care than usual. For example:
From time to time, granola-purchasing customers may occasionally forget to wear their glasses
while in the granola section of the supermarket.

NAKED GRANOLA, LLC | 1-800-530-1712 | [email protected] | NAKEDGRANOLA.COM

Please refer to Figure B, below, simulating a scenario in which a customer (familiar with the
appearance and commercial impression of GRUMPY BEARs marks) has forgotten to wear his/her
glasses.
(Please note that this is a simulated image only. We do not gather or retain data about the uncorrected eyesight of our customers)

Again, there is no reason to expect consumer confusion.

Furthermore, our sales data indicates that a non-zero quantity of granola is sometimes sold
during overnight hours. Please refer to Figure C, below.

NAKED GRANOLA, LLC | 1-800-530-1712 | [email protected] | NAKEDGRANOLA.COM

In this scenario, this is great reason to be concerned about the overall disorientation and
wellness of the customer, but still no expected confusion based on appearance of marks or
products.

While weve demonstrated the implausibility of confusion of the TEAM AWESOME mark and
the GRUMPY BEAR marks, it may be useful, for contrast, to examine what would clearly
constitute intentional, bad faith similarities. Let us examine two (2) designs that would
certainly be a cause for concern.
(These products are completely fictitious, and for educational purposes only.)

NAKED GRANOLA, LLC | 1-800-530-1712 | [email protected] | NAKEDGRANOLA.COM

Confusingly Similar Mockup #1

There are many elements within that this design that are confusingly similar to the BEAR
NAKED marks. Bringing a product like this to market would be in bad faith, as the intention
would likely be to mislead customers.
NAKED GRANOLA, LLC | 1-800-530-1712 | [email protected] | NAKEDGRANOLA.COM

Confusingly Similar Mockup #2

This design is, beyond any doubt, confusingly similar to GRUMPY BEARs BEAR NAKED marks.
The bad faith infringement extends beyond the word mark and to many of the design
characteristics detailed in the several of the BEAR NAKED trademark registrations.

NAKED GRANOLA, LLC | 1-800-530-1712 | [email protected] | NAKEDGRANOLA.COM

Evidence of Confusion
There is no actual evidence that TEAM AWESOMEs mark causes customer confusion, with
customers erroneously mistaking it for the GRUMPY BEAR marks, or as affiliated and/or
sponsored by GRUMPY BEAR.

As part of a routine intellectual property review, in early 2015 TEAM AWESOME commissioned
an externally conducted research study to investigate the likelihood of confusion in the
marketplace caused by the TEAM AWESOME mark & branding. The study follows the
Eveready format, which was established in 1976 Union Carbide Corp. v. Ever-Ready, Inc. and
has been approved countless times since. The study presented TEAM AWESOMEs products as
the junior mark, to investigate whether consumers exposed to the NAKED GRANOLA mark are
likely to be reminded of any existing strong senior marks.

The study was conducted in a randomized, double-blind format, with controls to account for
noise. The survey was administered to pre-screened participants within the relevant universe.
Participants were randomized and divided into 4 groups - one for each NAKED GRANOLA
product variant. Each group was then further divided in half, providing a treatment & control
cell for each product variant, for an overall cell count of 8. N = 400.

When analyzed, the resulting data shows conclusively that there is no evidence of actual
confusion in the marketplace.
Please see Figure D, below.

NAKED GRANOLA, LLC | 1-800-530-1712 | [email protected] | NAKEDGRANOLA.COM

We do, however, wish to comment on demand #2 from your previous letter which states:
2) Acknowledge [GRUMPY BEAR]s exclusive right to use and register the BEAR NAKED Marks
in the United States for granola, cereals, and any related goods.
Dear GRUMPY BEAR, Go for it! Were not trying to stop you! You dont need to ask us for
validation. We acknowledge your rights of use and registration! Enjoy! But all of the
aforementioned arguments indicate that our marks are distinct. Were moving apart. But we
can still be friends.
Seriously though, thanks again for your letter. We really do appreciate hearing from Naked
Granola fans across the nation! And I always truly appreciate the opportunity to spend my
nights and weekends away from my family, in front of a computer, so I can respond to letters
like this.
Sincerely yours,

Mark Agrusti
Creative Director / Chief Letter-Writing Officer

NAKED GRANOLA, LLC | 1-800-530-1712 | [email protected] | NAKEDGRANOLA.COM