Exhibit
10.1


 


EXCLUSIVE
REPRESENTATIVE AND LICENSE AGREEMENT


 


DUO
SCIENCES INC and LUCY PET PRODUCTS INC


 


 


THIS
EXCLUSIVE REPESENTATIVE AND LICENSE AGREEMENT (“Agreement”) is made this 18th day of April, 2022 (“Effective Date”)
by and between DUO SCIENCES INC, a subsidiary of Point of Care Nano-Technology, Inc., a Nevada corporation, with offices located in Whitehouse
Station New Jersey and Davenport, Fla., or its designee (“DUO SCIENCES” or “Company” and LUCY PET PRODUCTS or
their designee (“LUCY” or “Representative”), Limited Liability Company formed under the laws of the State of
Delaware, with an address at 31340 Via Colinas Suite 106, Westlake Village, CA 91362 USA. DUO SCIENCES and LUCY may hereafter be referred
to as the “Parties” and each a “Party”.


 


WHEREAS,
DUO SCIENCES has developed and invented certain processes and products for the pet health (see abstract of products annexed Schedule
1) (hereinafter referred to as “Products”). Products, for the purposes of this Agreement, includes any new creations related
to, developments and improvements of the Products.


 


WHEREAS,
DUO SCIENCES/Dr Blake Hawley has applied for certain patent rights, copyrights and/or trademarks regarding the products for pet health
(see patents, trademarks and copyright information annexed Schedule 2).


 


WHEREAS,
LUCY, has officers and principal owners who are experienced in the sales, distribution, and promotion of pet products domestically.


 


WHEREAS,
the parties desire to enter into an exclusive representative relationship and license agreement with each other subject to the terms
and conditions of this Agreement.


 


NOW
THEREFORE, in consideration of the promises and mutual covenants contained herein and for other good and valuable consideration, the
parties hereby agree, and covenant as follows:


 


		1.	Appointment
                                            of Exclusive Representative and Grant of License:



 


1.1       DUO
SCIENCES appoints LUCY as its exclusive representative to sell and promote its Products, subject to the terms below, in the territory
as identified in Schedule 3 annexed hereto and made a part hereof.


 


1.2       LUCY
accepts the appointment as the exclusive representative/distributor.


 


1.3       Company
grants an exclusive license to LUCY to use the formulas and Products in the subject territory for business purposes in conformity with
this Agreement, and for the term of this Agreement LUCY shall be permitted, with advance notice to Company, to sub-license the rights
granted herein to Breeder’s Choice Pet Foods, LLC to use the formulas and products. Breeder’s Choice Pet Foods, LLC shall
agree in writing to be bound by this Agreement as if it were a signatory prior to exercising any sub-licensing rights.



     


     


    

1.4       No
title or ownership interest is granted or conveyed to the Representative in the formulas or Products, including any intellectual property
arising out of such formulas or Products (“Intellectual Property’) and all Intellectual Property, pending or existing, will
remain exclusively the property of the Company, subject to the Representative’s right to purchase the Intellectual Property, formulas
and/or Products in accordance with the terms of this Agreement.


 


1.5       During
the term of this Agreement and any extensions thereof, DUO SCIENCES agrees to place the descriptions of its formulas, along with detailed
instructions about the process of creating the formulas (“Formula Information”), to LUCY. The Formula Information must contain
all information and specifications sufficient for LUCY and/or its experts to create the Products. In the event of a change of control
or sale of DUO SCIENCES, or the death or incapacity of DUO SCIENCES’s principal, Blake Hawley, LUCY shall be entitled to continue
to manufacture and sell the Products with payments due to DUO SCIENCES’s designee, the estate of Dr Blake Hawley, or successor.


 


1.6       LUCY
shall be permitted to place its name, trademark, and/or service mark on the packaging, promotional material and/or advertising (in any
media) for the Products.


 


1.7       The
term of this Agreement shall be the later of twenty years from the date of this Agreement or the expiration of the Patent issued for
the Products identified in Schedule 1.


 


		2.	Representative’s
Obligations. The Representative shall provide the following:



 


2.1       Source
ingredients, manufacture, sell and promote the Products of the Company within the territory as identified in Schedule 3.


 


2.2       Representative
shall not be required to manufacture or sell a Minimum Amount of the Products, or to purchase a minimum amount of any ingredients for
the Products.


 


2.3       Representative
shall be responsible for its packaging, promotion and sale costs as well as the shipping costs of the Product.


 


2.4       In
the event that the Representative becomes aware of any actual or potential claim against the Company by any person or entity, Representative
shall notify the Company immediately.


 


2.5
       Representative shall comply with all applicable federal, state and local laws and regulations
in performing its responsibilities hereunder.


 


2.6       At
the sole discretion of the Representative, the Representative shall devote as much time as it deems necessary to the affairs of the Company.


 


2.7       The
Representative may represent, perform services for, and sell additional products in the field as the Representative so determines, provided
the Representative’s product does not directly or indirectly compete with the Company ́s product.


 


3.            Representative’s
Right to Retain Other Representatives. The Representative, at its sole discretion and cost, shall have the right to appoint and utilize
other representatives to promote and develop the sales of the Products within the territory.



    2


     


    

4.            Company’s
Warranty and Representations. Company represents the following:


 


4.1       The
Products are safe for dogs regarding its intended usage. The Company is unaware of any material side effects arising out of the use of
the Products when fed as directed.


 


4.2       If
government approvals are necessary for marketing and sale of the Product, the Representative shall obtain such approvals at its sole
cost and expense.


 


4.3       Company
and Dr Blake Hawley represent that they, individually or collectively, own the entire right, title and interest in the Intellectual Property
(defined as including, but not limited to, the formulas, processes, patent rights, copyrights and trademarks) for the Products; the Intellectual
Property is valid and enforceable; they, individually or collectively, have the right to grant the exclusive license described in this
Agreement; the use of the Intellectual Property does not infringe upon the rights of any third party; and they are aware of no claims
against the Intellectual Property challenging the representations and warranties in this Section 4.3


 


5.            Territory
and Exclusivity of Territory.


 


5.1       The
Representative shall be the exclusive representative of the territory as identified in Schedule 3.


 


5.2       Representative
has the right to operate exclusively in the territory identified in Schedule 3, and in which the
Company is restricted from establishing any other sales representatives or agents outside the territory for the product defined in this
contract, unless agreed in writing in an addendum or separate agreement.


 


6.            Term
of Agreement, Fees and Royalties.


 


6.1       This
Agreement shall be in full force and effect commencing upon the signing of the agreement, and continue for twenty years thereafter, or
as long as the patent is in effect, unless terminated for cause, subject to Sections 8.1 and 8.2 below.


 


6.2       Representative
agrees to pay DUO SCIENCES a licensing fee and royalties as set out in Schedule 4. 


 


7.            Termination
of Agreement.


 


7.1       For
the purposes of this Agreement, this agreement may be terminated for cause by the Company if the Representative: (a) materially breaches
this Agreement after a sixty (60) day right to cure period duly noticed by the Company to the Representative in writing; (b) is convicted
of a felony related to the subject of this Agreement (c) embezzles or intentionally and wrongfully takes money or property from the Company,
(d) intentionally acts in a wrongful manner to cause pecuniary loss to the Company or (e) fails to actively promote the Product in the
Territory.



    3


     


    

7.2       For
the purposes of this Agreement, this Agreement may be terminated for cause by the Representative if the Company (a) materially breaches
this Agreement after a sixty (60) day right to cure period duly noticed by the Representative to the Company in writing; (b) if the Company
is convicted of a felony related to the subject of this Agreement; (c) intentionally acts in a wrongful manner to cause pecuniary loss
to the Representative.


 


8.            Indemnification
and Limitation of Liability.


 


8.1       Indemnification
of Company: Representative hereby agrees to indemnify, defend, and hold Company (and any parent or subsidiary now or hereafter formed)
and their respective owners, directors, officers, employees, independent contractors, and other representatives free and harmless from
any and all claims, demands, losses, costs, expenses, obligations, liabilities, damages, recoveries, and deficiencies, including interest,
penalties, attorney’s fees, and or legal costs, fees and expenses arising from or related to: (i) any breach by Representative of any
representation, warranty, covenant, obligation or agreement contained in this Agreement; (ii) any other violation of Law; and (iii) any
negligent act or omission by the Representative or Representative’s Employees.


 


8.2       Indemnification
of Representative: Company hereby agrees to indemnify, defend, and hold Representative and its directors, officers, employees, independent
contractors, and other Representatives free and harmless from any and all claims, demands, losses, costs, expenses, obligations, liabilities,
damages, recoveries, and deficiencies, including interest, penalties, attorney’s fees, and or legal costs, fees and expenses arising
from or related to: (i) any breach by Company of any representation, warranty, covenant, obligation or agreement contained in this Agreement;
(ii) any other violation of Law; (iii) any negligent act or omission by the Company or its representatives; or (iv) defects in Products
provided by Company.


 


9.            Choice
of Law and Venue.


 


9.1       The
Parties shall use their best efforts to settle any disputes, controversies, claims or differences (“disputes”) arising out
of, or in relation to, or in connection with this Agreement, or with respect to any breach, termination or claim of invalidity hereof.
To this effect they shall consult and negotiate with each other, in good faith, with a view to reach a just and equitable solution within
a period of thirty (30) calendar days after notice of a dispute by one party to the other.


 


9.2       
Dispute Resolution. Except with respect to actions for equitable relief hereunder which may be brought in a court of competent jurisdiction
within Kansas, any controversy or claim (“dispute”) arising out of or related to this Agreement shall first go to mediation.
Each Party shall equally bear the costs at such mediation. If mediation is unsuccessful, any dispute must be settled by final and binding
arbitration in the County of Douglas, Kansas, pursuant to the JAMS Foundation Comprehensive Arbitration Rules and Procedures. A single
arbitrator may be selected by unanimous agreement of the Parties, but if the Parties fail to agree on and appoint an arbitrator within
thirty (30) calendar days of the receipt by any Party of notice of the existence of a dispute, each Party shall select an arbitrator
and those arbitrators shall select a third arbitrator, who shall be appointed to arbitrate the dispute. then such dispute shall be settled
in accordance with the commercial arbitration rules then in effect of the American Arbitration Association. Any determination or award
rendered by the arbitrator(s), which may include equitable relief, shall be final, binding and conclusive upon the Parties it being understood
and agreed that the award will be the sole and exclusive remedy between them regarding any and all claims and counterclaims presented
to the tribunal and such award or determination may be entered and enforced as a final judgment in any court having jurisdiction over
the subject matter thereof or of the Parties. The prevailing party shall be awarded reasonable attorney’s fees, expert and non-expert
witness costs and expenses. All fees and expenses incurred in connection with the arbitration and the cost of the arbitrator shall be
borne by the non-prevailing party.



    4


     


    

9.3       This
Agreement shall be deemed to have been entered into in the State of Kansas, and all questions concerning the validity, interpretation
or performance of any of the terms, conditions and provisions of this Agreement or of any of the rights or obligations of the parties
shall be governed by, and resolved in accordance with, the laws of the State of Kansas.


 


10.         Force
Majeure.


 


10.1       If
any party is rendered unable, completely or partially, by the occurrence of any event of “force majeure” (hereinafter defined)
to perform such party’s obligations created by the provisions of this Agreement, other than the obligation to make payments of
money, such party shall give to the other party prompt written notice of the event of “force majeure” with reasonably complete
particulars concerning such event; thereupon, the obligations of the party giving such notice, so far as those obligations are affected
by the event of “force majeure”, shall be suspended during, but no longer than, the continuance of the event of “force
majeure.” The party affected by such event of “force majeure” shall use all reasonable diligence to resolve, eliminate
and terminate the event of “force majeure” as quickly as practicable.


 


10.2       The
requirement that an event of “force majeure” shall be remedied with all reasonable dispatch as herein above specified, shall
not require the settlement of strikes, lockouts or other labor difficulties by the party involved, contrary to such party’s wishes,
and the resolution of any and all such difficulties shall be handled entirely within the discretion of the party concerned.


 


10.3       The
term “force majeure” as used herein shall be defined as and mean any act of God, strike, civil disturbance, lockout or other
industrial disturbance, act of the public enemy, war, blockage, public riot, earthquake, tornado, hurricane, lightening, fire, public
demonstration, storm, flood, explosion, governmental action, governmental delay, restraint or inaction, unavailability of equipment,
and any other cause or event, whether of the kind enumerated specifically herein, or otherwise, which is not reasonably within the control
of the party claiming such suspension.


 


11.         Miscellaneous Clauses.


 


11.1       Change
of Control. In the event either Party experiences a change in control transaction, the terms and conditions of this Agreement shall remain
in effect and in full force, and such corporate change shall not in any way diminish, enlarge, affect or compromise the rights and obligations
defined in this agreement. For purposes of this Agreement, “change in control” transaction shall mean a merger, acquisition,
sale of assets, sale of ownership interest or any other transaction which results in a change of the power to manage the business of
a Party.



    5


     


    

11.2       Assignability.
Except as provided in Section 12.1 above, neither party shall sell, assign, transfer, convey or encumber this Agreement or any right
or interest in this Agreement or pursuant to this Agreement, or suffer or permit any such sale, assignment, transfer or encumbrance to
occur by operation of law without the prior written consent of the other party except for a change of control as defined in Section 11.1
of this Agreement. In the event of any sale, assignment, transfer or encumbrance consented to by such other party, the transferee or
such transferee’s legal representative shall agree with such other party in writing to assume personally, perform and be obligated
by the covenants, obligations, warranties, representations, terms, conditions and provisions specified in this Agreement.


 


11.3       Successors.
This Agreement and each of the provisions of this Agreement shall obligate and inure to the benefit of the heirs, executors, administrators,
successors and assigns of each of the parties; provided, however, nothing specified in this paragraph shall be a consent to the assignment
or delegation by any party of such party’s respective rights and obligations created by the provisions of this Agreement.


 


11.4       Equitable
Remedies. As a result of the uniqueness of the services to be performed by the Representative for the Company, and because the reputation
of the parties in the community may be affected by the financial success or failure of the business, in addition to the other rights
and remedies that injured party may have for a breach of this Agreement, the injured party shall have the right to: enforce this Agreement
in all of its provisions, specific performance, or other relief in a court or equity.


 


11.5       Concurrent
Remedies. No right or remedy specified in this Agreement conferred on or reserved to the parties is exclusive of any other right
or remedy specified in this Agreement or by law or equity provided or permitted; but each such right and remedy shall be cumulative of,
and in addition to, every other right and remedy specified in this Agreement or now or hereafter existing at law or in equity or by statute
or otherwise, and may be enforced concurrently therewith or from time to time. The termination of this Agreement for any reason whatsoever
shall not prejudice any right or remedy which either party may have, either at law, in equity or pursuant to the provisions of this Agreement.


 


11.6       Notices.
All notices, requests and demands pursuant to this Agreement shall be in writing and delivered (a) in person or by e-mail transmission
and shall be deemed to have been duly given on the date of service, if delivered in person or e-mail transmission (with confirmation
of transmission receipt acting as confirmation of service when sent and provided that the facsimile notices are also mailed by first
class, certified or registered mail, postage prepaid); or (b) 72 hours after mailing by first class, registered or certified mail, postage
prepaid, or (b) the next day if mailed by overnight mail with a reputable overnight carrier, and in any event, properly addressed as
follows:


 


	Company:
    

    Attn: Nicholas DeVito

    DUO SCIENCES INC

    63 Van Cleef Drive

    Whitehouse Station, NJ 08889

    Email: npdevito@gmail.com	Representative:

    Attn: Joey Herrick

    LUCY PET PRODUCTS

    31340 Via Colinas Suite 106 

    Westlake Village, CA 91362 USA

    Email: joey@lucypetproducts.com


 


or
at such other address as the party affected my designate in a written notice to such other party in compliance with this paragraph.



    6


     


    

11.7       Entire
Agreement. This Agreement supersedes any and all other agreements, either oral or in writing, between the parties regarding the subject
matter of this Agreement and specifies all the covenants and agreements between the parties with respect to that subject matter, and
each party acknowledges that no representations, inducements, promises, or agreements, orally or otherwise, have been made by any party,
or anyone acting on behalf of any party, which are not specified in his Agreement; and any other agreement, statement or promise concerning
the subject matter specified in this Agreement shall be of no force or effect in a subsequent modification in writing signed by the party
to be charged.


 


11.8       Severability.
In the event any part of this Agreement, for any reason, is determined to be invalid, such determination shall not affect the validity
of any remaining portion of this Agreement, which remaining portion shall remain in complete force and effect as of this Agreement had
been executed with the invalid portion of this Agreement eliminated. It is hereby declared the intention of the parties that the parties
would have executed the remaining portion of this Agreement without including any such part, parts or portion which, for any reason,
hereafter may be determined invalid.


 


11.9       Captions
and Interpretation. Captions of the paragraphs of this Agreement are for convenience and reference only, and the words contained
in those captions shall in no way be held to explain, modify, amplify or aid in the interpretation, construction or meaning of the provisions
of this Agreement. The language in all parts to this Agreement, in all cases, shall be construed in accordance with the fair meaning
of that language as if that language was prepared by all parties and not strictly for or against any party.


 


11.10       Further
Assurances. Each party shall take any and all action necessary, appropriate or advisable to execute and discharge such party’s
responsibilities and obligations created by the provisions of this Agreement and to further effectuate, perform and carry out the intents
and purposes of this Agreement and the relationship contemplated by the provision of this Agreement.


 


11.11       Governmental
Rules and Regulations. The provisions of this Agreement are subject to any and all present and future orders, rules and regulations
of any duly constituted authority having jurisdiction of the relationship contemplated by the provisions of this Agreement.


 


11.12       Execution
in Counterparts. This Agreement may be prepared in multiple copies and forwarded to each of the parties for execution. This Agreement
shall become effective when the Representative receives a copy or copies of this Agreement executed by the parties in the names as those
names appear at the end of this Agreement. All of the signatures of the parties may be affixed to one copy or to separate copies of this
Agreement and when all such copies are received and signed by all the parties, those copies shall constitute one agreement that is not
otherwise separable or divisible.


 


11.13       Reservation
of Rights. The failure of any party at any time hereafter to require strict performance by any other party of any of the warranties,
representations, covenants, terms, conditions and provisions specified in this Agreement shall not waive, affect or diminish any right
of such failing party to demand strict compliance and performance therewith and with respect to any other provisions, warranties, terms
and conditions specified in this Agreement. None of the representations, warranties, covenants, conditions, provisions and terms specified
in this Agreement shall be deemed to have been waived by any act or knowledge of either party or such party’s agents, officers
or employees, and any such waiver shall be made only by an instrument in writing, signed by the waiving party and directed to each non-waiving
party specifying such waiver. Each party reserves such party’s rights to insist upon strict compliance with the terms, conditions,
warranties, obligations, representations, covenants and provisions of this Agreement at all times.



    7


     


    


11.14       Continuing
Provisions. Notwithstanding anything to the contrary contained herein, the provisions concerning confidentiality, indemnification,
contribution and the Company’s obligations to pay fees and pay or reimburse expenses contained herein and in the indemnification,
provisions hereof will survive any such expiration or termination of this Agreement.


 


11.15       Consent
to Agreement. By executing this Agreement, each party, for itself, represents such party has read or caused to be read this Agreement
in all particulars, and consents to the rights, conditions, duties and responsibilities imposed upon such party as specified in this
Agreement.


 


Accepted
and agreed to on the date first indicated above.


 





	Company—DUO SCIENCES INC	 	Representative—LUCY PET PRODUCTS
	 	 	 
	By: Nicholas DeVito	 	By:    Joey Herrick
	Title: CEO	 	Title: CEO
	 	 	 
	By: Dr Blake Hawley	 	 






    8


     


    

SCHEDULE
1


 


Products


 


Intellectual
Property – Product commonly known as DUO


 


Abstract


 


Invention
disclosed to patent attorney for utility patent on the line of dosage form products comprised of
a hot extruded outer flexible, cellular non-GMO, non-nutritive fibrous matrix dental crust/mantle providing mechanical cleansing
action and hyper-salivation and an inner core that is cold formed and cold extruded in the center to preserve material containing various
nutraceuticals or drugs.


 


		●	Dental
                                            (equivalent to weekly brushing of teeth) + Fresh Breath - proprietary formulation
                                            plus invention disclosed to patent attorney.



 


		●	Sensitive
                                            Tummy + Dental (sensitive stomach & food/other allergies) – Epionice brand
                                            CAS United States Patent. 9,550,673, Titled: “Preservative and Additive for Food and
                                            Feed.” CEDOGA Consulting LLC licensed the material from Texas EnteroSorbents Inc on
                                            7 Nov 2017, but raw material may also be purchased outright in non-exclusive arrangement.



 


		●	Sensitive
                                            Skin & Coat/Allergy + Dental (helps reduce inflammation and improves coat luster,
                                            plus helps reduce shedding and regrow lost fur). Can be purchased outright from Eire Pharmaceuticals
                                            in accordance with exclusive licensing agreement by SBH Nutrition Science LLC. US Patent
                                            Pending



 


		●	Joint
                                            + Dental (Improves mobility & joint health in 3 days). Raw material purchased from
                                            Bioved under exclusive or non-exclusive arrangement for dogs. Artrex patent 8808769



 


		●	Calming
                                            (Cannasorb) + Dental (for owners wanting whole body benefits of CBD for calming, seizures,
                                            pain). Source of Cannasorb may be purchased outright from Synergy Life Science or substituted
                                            with CBD, which Representative may source outright.



 


		●	Weight
                                            Management + Dental (the non-nutritive weight management treat) Two options – no
                                            center (to further reduce calories)






    9


     


    


SCHEDULE
2


Patents,
Copyrights and Trademarks


 


Patent
filed on July 16, 2020, through


 


Linda
L. Lewis


Linda
Lewis, Attorney at Law, LLC


1001
Westlake Village Dr.


Pacific,
MO 63069


314-420-1525


LLewis.Law2020@gmail.com


www.LindaLewisPatentAttorney.com


 


Filing
receipt received (document follows on next page)



    10


     


    


	Electronic
    Acknowledgement Receipt
	EFS
    ID:	40019933
	Application
    Number:	16930604
	International
    Application Number:	 
	Confirmation
    Number:	3896
	Title
    of Invention:	Edible
    Pet Chew with Thermo-processed Shell and Cold-formed Filling
	First
    Named Inventor/Applicant Name:	Blake
    Hawley
	Customer
    Number:	167383
	Filer:	Linda
    L Lewis
	Filer
    Authorized By:	 
	Attorney
    Docket Number:	CCon-2UTIL
	Receipt
    Date:	16-JUL-2020
	Filing
    Date:	 
	Time
    Stamp:	13:21:34
	Application
    Type:	Utility
    under 35 USC 111(a)
	Payment
    information:
	Submitted
    with Payment	yes
	Payment
    Type	CARD
	Payment
    was successfully received in RAM	$785
	RAM
    confirmation Number	E20207FD23294677
	Deposit
    Account	 
	Authorized
    User	 
	The
    Director of the USPTO is hereby authorized to charge indicated fees and credit any overpayment as follows:




    11


     


    

	 
	File
    Listing:
	Document

    Number	Document
    Description	File
    Name	File
    Size(Bytes)/

    Message Digest	Multi

    Part /.zip	Pages

    (if appl.)
	1	Application
    Data Sheet	WebADS.pdf	115456	no	7
	d6b3095ff9d177740dff54725ad9a4086027bca4
	Warnings:
	Information:
	2	 	specfiled.pdf	80241	yes	16
	d507e51f4db57877278f7824c32e614985e5829d
	 	Multipart
    Description/PDF files in .zip description
	Document
    Description	Start	End
	Specification	1	11
	Claims	12	15
	Abstract	16	16
	Warnings:
	Information:
	3	Drawings-only
    black and white line drawings	Presentation1.pdf	98844	no	3
	4ca2e64da6c33adc80397d936bd7f05e9fc8ea56
	Warnings:
	Information:
	4	 	declnpoasigned.pdf	695104	yes	6
	13ec6748a32327474d9cf4f6edc4def399e40bbb
	 	Multipart
    Description/PDF files in .zip description
	Document
    Description	Start	End
	Oath
    or Declaration filed	1	2
	 	Power
    of Attorney	3	6




    12


     


    

	Warnings:
	The
    PDF file has been signed with a digital signature and the legal effect of the document will be based on the contents of the file
    not the digital signature.
	Information:
	5	First
    Action Interview - Enrollment Request	sb0413c.pdf	735354	no	3
	96286b15d4eb80859061746c3f6972fced979d8d
	Warnings:
	Information:
	6	Fee
    Worksheet (SB06)	fee-info.pdf	35249	no	2
	2a86c79c9873072cc88ea32a27b58d5b2ac6353c
	Warnings:
	Information:
	Total Files Size (in bytes):	1760248
	This
                                            Acknowledgement Receipt evidences receipt on the noted date by the USPTO of the indicated
                                            documents, characterized by the applicant, and including page counts, where applicable. It
                                            serves as evidence of receipt similar to a Post Card, as described in MPEP 503.

     

    New
    Applications Under 35 ll.S.C. 111

     

    If
    a new application is being filed and the application includes the necessary components for a filing date (see 37 CFR 1.53(b)-(d)
    and MPEP 506), a Filing Receipt (37 CFR 1.54) will be issued in due course and the date shown on this Acknowledgement Receipt will
    establish the filing date of the application.

     

    National
    Stage of an International Application under 35 U.S.C. 371

     

    If
    a timely submission to enter the national stage of an international application is compliant with the conditions of 35 U.S.C. 371
    and other applicable requirements a Form PCT/DO/EO/903 indicating acceptance of the application as a national stage submission under
    35 U.S.C. 371 will be issued in addition to the Filing Receipt, in due course.

     

    New
    International Application Filed with the USPTO as a Receiving Office

     

    If
a new international application is being filed and the international application includes the necessary components for an international
filing date (see PCT Article 11 and MPEP 1810), a Notification of the International Application Number and of the International Filing
Date (Form PCT/RO/105) will be issued in due course, subject to prescriptions concerning national security, and the date shown on this
Acknowledgement Receipt will establish the international filing date of the application.




 


United
States Patent and Trademark Office (USPTO)


Office
Action (Official Letter) About Applicant’s Trademark Application 


 


	U.S. Application Serial No. 88750071

                                                                                 
 Mark: DUO DOUBLE THE BENEFITS DOUBLE THE

	 
	Correspondence
    Address:

    Linda L Lewis

    Linda Lewis, Attorney at Law

    1001 Westlake Village Dr

    Pacific MO 63069
	Applicant:
    CEDOGA Consulting LLC





    13


     


    


	Reference/Docket
    No. CCon-3 TM



    Correspondence Email Address:

    LLewis.Law2020@gmail.com


 


FINAL
OFFICE ACTION


 


The
USPTO must receive applicant’s response to this letter within six months of the issue date below or the application will
be abandoned. Respond using the Trademark Electronic Application System (TEAS) and/or Electronic System for Trademark Trials and Appeals
(ESTTA). A link to the appropriate TEAS response form and/or to ESTTA for an appeal appears at the end of this Office action.


 


Issue
date:     June 25, 2020


 


INTRODUCTION


 


This
Office action is in response to applicant’s communication filed on 5-27-2020.


 


In
a previous Office action(s) dated 4-1-2020, the trademark examining attorney refused registration of the applied-for mark based on the
following: Trademark Act Section 2(d) for a likelihood of confusion with a registered mark and specimen refusal. In addition, applicant
was required to satisfy the following requirement(s): clarify the mark description and color claim and clarify ownership. Applicant was
also given the opportunity to delete the section 2(f) claim.


 


Based
on applicant’s response, the trademark examining attorney notes that the following requirement(s) have been satisfied: mark description
and color claim; ownership clarification; Section 2(f) claim is deleted. See TMEP §§713.02, 714.04.


 


The
following refusal(s) have also been obviated: Specimen refusal. See TMEP §§713.02, 714.04.


 


The
trademark examining attorney maintains and now makes FINAL the refusal under Section 2(d). See 37 C.F.R. §2.63(b); TMEP §714.04.


 


Likelihood
of Confusion


 


Registration
of the applied-for mark is refused because of a likelihood of confusion with the mark in U.S. Registration No. 4622252. Trademark Act
Section 2(d), 15 U.S.C. §1052(d); see TMEP §§1207.01 et seq.



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Trademark
Act Section 2(d) bars registration of an applied-for mark that is so similar to a registered mark that it is likely consumers would be
confused, mistaken, or deceived as to the commercial source of the goods and/or services of the parties.  See 15
U.S.C. §1052(d). Likelihood of confusion is determined on a case-by-case basis by applying the factors set forth in In re E.
I. du Pont de Nemours & Co., 476 F.2d 1357, 1361, 177 USPQ 563, 567 (C.C.P.A. 1973) (called the “du Pont factors”).
In re i.am.symbolic, llc, 866 F.3d 1315, 1322, 123 USPQ2d 1744, 1747 (Fed. Cir. 2017). Any evidence of record related to those
factors need be considered; however, “not all of the DuPont factors are relevant or of similar weight in every case.”
In re Guild Mortg. Co., 912 F.3d 1376, 1379, 129 USPQ2d 1160, 1162 (Fed. Cir. 2019) (quoting In re Dixie Rests., Inc.,
105 F.3d 1405, 1406, 41 USPQ2d 1531, 1533 (Fed. Cir. 1997)).


 


Although
not all du Pont factors may be relevant, there are generally two key considerations in any likelihood of confusion analysis: (1)
the similarities between the compared marks and (2) the relatedness of the compared goods and/or services. See In re i.am.symbolic,
llc, 866 F.3d at 1322, 123 USPQ2d at 1747 (quoting Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d 1156, 1164-65,
64 USPQ2d 1375, 1380 (Fed. Cir. 2002)); Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 1103, 192 USPQ 24, 29 (C.C.P.A.
1976) (“The fundamental inquiry mandated by [Section] 2(d) goes to the cumulative effect of differences in the essential characteristics
of the goods [or services] and differences in the marks.”); TMEP §1207.01.


 


Here,
as discussed in the first action, the marks are highly similar because of the shared wording DUO. DUO is the only distinctive element
of the registered mark as the wording JERKY is highly descriptive or generic of the goods and disclaimed. DUO is also the most dominant
element of applicant’s mark as DUO is very large in relation to the remaining wording and design. Registrant’s sole distinctive
element, DUO, composes the most distinctive element of applicant’s mark. This shared wording creates a clear similarity.


 


Applicant
argues that the marks are “in no way the same in appearance...” However, the question is not whether the marks are the
same but whether they are similar. The examining attorney maintains that the shared DUO creates a clear, overall, similarity.


 


Applicant
argues that the design element in its mark makes the marks dissimilar. However, the registered mark is in standard characters. A mark
in typed or standard characters may be displayed in any lettering style; the rights reside in the wording or other literal element and
not in any particular display or rendition. See In re Viterra Inc., 671 F.3d 1358, 1363, 101 USPQ2d 1905, 1909 (Fed. Cir. 2012);
In re Mighty Leaf Tea, 601 F.3d 1342, 1348, 94 USPQ2d 1257, 1260 (Fed. Cir. 2010); 37 C.F.R. §2.52(a); TMEP §1207.01(c)(iii).
Thus, a mark presented in stylized characters and/or with a design element generally will not avoid likelihood of confusion with a mark
in typed or standard characters because the word portion could be presented in the same manner of display. See, e.g., In re
Viterra Inc., 671 F.3d at 1363, 101 USPQ2d at 1909; Squirtco v. Tomy Corp., 697 F.2d 1038, 1041, 216 USPQ 937, 939 (Fed. Cir.
1983) (stating that “the argument concerning a difference in type style is not viable where one party asserts rights in no particular
display”).



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Additionally,
when evaluating a composite mark consisting of words and a design, the word portion is normally accorded greater weight because it is
likely to make a greater impression upon purchasers, be remembered by them, and be used by them to refer to or request the goods and/or
services. In re Aquitaine Wine USA, LLC, 126 USPQ2d 1181, 1184 (TTAB 2018) (citing In re Viterra Inc., 671 F.3d 1358, 1362,
101 USPQ2d 1905, 1908 (Fed. Cir. 2012)); TMEP §1207.01(c)(ii). Thus, although marks must be compared in their entireties, the word
portion is often considered the dominant feature and is accorded greater weight in determining whether marks are confusingly similar,
even where the word portion has been disclaimed. In re Viterra Inc., 671 F.3d at 1366-67, 101 USPQ2d at 1911 (citing Giant
Food, Inc. v. Nation’s Foodservice, Inc., 710 F.2d 1565, 1570-71, 218 USPQ2d 390, 395 (Fed. Cir. 1983)).


 


Applicant
argues that the marks are different in sound, connotation and meaning/commercial impression. However, the dominant element DUO is identical
in the marks. Thus, the sound, meaning and commercial impression of the most important commercial impression creating element in
the marks is identical. Thus, the marks are similar.


 


Next,
the evidence of record establishes that the goods are highly related. The compared goods and/or services need not be identical or even
competitive to find a likelihood of confusion. See On-line Careline Inc. v. Am. Online Inc., 229 F.3d 1080, 1086, 56 USPQ2d 1471,
1475 (Fed. Cir. 2000); Recot, Inc. v. Becton, 214 F.3d 1322, 1329, 54 USPQ2d 1894, 1898 (Fed. Cir. 2000); TMEP §1207.01(a)(i).
They need only be “related in some manner and/or if the circumstances surrounding their marketing are such that they could give
rise to the mistaken belief that [the goods and/or services] emanate from the same source.” Coach Servs., Inc. v. Triumph Learning
LLC, 668 F.3d 1356, 1369, 101 USPQ2d 1713, 1722 (Fed. Cir. 2012) (quoting 7-Eleven Inc. v. Wechsler, 83 USPQ2d 1715, 1724
(TTAB 2007)); TMEP §1207.01(a)(i).


 


Attached
to this action are third party web pages which show that it is entirely common for producers of foods for dogs to also produce supplements
for dogs under the same marks and through the same channels of trade. See also evidence attached to first action. Furthermore, attached
to this action are multiple third party registrations showing both supplements and foods for dogs produced under the same marks. Thus,
the evidence of record shows that the goods are highly related. See In re I-Coat Co., 126 USPQ2d 1730, 1737 (TTAB 2018) (citing
In re Infinity Broad. Corp., 60 USPQ2d 1214, 1217-18 (TTAB 2001); In re Albert Trostel & Sons Co., 29 USPQ2d 1783,
1785-86 (TTAB 1993); In re Mucky Duck Mustard Co., 6 USPQ2d 1467, 1470 n.6 (TTAB 1988)); TMEP §1207.01(d)(iii).


 


Applicant
argues that one buying treats for dogs would not mistakenly buy supplements. However, the issue is not likelihood of confusion between
particular goods, but likelihood of confusion as to the source or sponsorship of those goods. In re Majestic Distilling Co., 315
F.3d 1311, 1316, 65 USPQ2d 1201, 1205 (Fed. Cir. 2003); In re Shell Oil Co., 992 F.2d 1204, 1208, 26 USPQ2d 1687, 1689 (Fed. Cir.
1993); TMEP §1207.01. Thus, applicant’s argument is unpersuasive.


 


The
marks are similar. The goods are highly related. Thus, there is a likelihood of confusion and registration must be denied.



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How
to respond.  Click to file a request for reconsideration of this final Office action that fully resolves all outstanding
requirements and refusals and/or click to file a timely appeal to the Trademark Trial and Appeal Board (TTAB) with the required
filing fee(s).


 


/Daniel
F. Capshaw/


Daniel
F. Capshaw


Examining
Attorney


Law
Office 110


571-272-9356


daniel.capshaw@uspto.gov




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SCHEDULE
3


Territory


 


The
exclusive territory shall be the North American pet trade, including online sales to include Mexico, USA and Canada.


 


The
territory excludes the veterinary trade, which includes, but is not limited to veterinary clinics or hospitals, veterinary clinic chains
or corporate veterinary offices, etc. In the event LUCY enters the veterinary trade, the Parties shall consult with each other about
expanding the Territory to include the veterinary trade, and amending this Agreement to memorialize that territorial expansion.





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Schedule
4


 


Lucy
Pet to pay one-time license fee of $100,000 on execution of licensing agreement.


 


Royalty
shall be calculated at 5% of Net Revenue, and payable quarterly. For purposes of this Agreement: (a) “Net Revenue” means,
with respect to the Representative, the total revenues for any period of time from the sale of Products sold by the Representative, less
any: (i) Sampling Expense; and (ii) excise or sales taxes or similar taxes (other than any income or gross receipts tax due to any state
or federal governmental agency with respect to the Representative’s income or gross receipts) due from the Representative with
respect to such total revenues; and (b) “Sampling Expense” means any direct cost of materials, manufacturing, packaging and
delivery incurred by the Representative with respect to Products provided without cost or at a minimal cost to third parties.



19