EATRIGHT® OAT & (Pinot Noir grape skin) Cookie

65% less total sugar than an average cookie, no added refined sugar, high in dietary fiber, source of beta glucan from oats "reduces blood glucose rise after a meal" and "reduces blood cholesterol" (ref: EU Approved Health Claims). This cookie was referred to, by others, as the commercialized "clever cookie" for good reason ... it was a yummy combination of OATS, water lessened grapes (EC 3.4.21.92 Endopeptidase caseinolytic protease Clp) and spices. It was low in sugar - tasted great with a low glycaemic index/load. And despite disinformation, oats "quite safe...now recommend that oats can be eaten in moderation. This has made the life of a coeliac subject much easier” (ref: “Coeliac Dis Info-1” pub. 29Apr02) a summary of Gastroenterol Hepatol 2000 Sep;15(9):1032-6 Adult coeliac disease: prevalence and clinical significance by Cook HB, Burt MJ, Collett JA, Whitehead MR, Frampton CM, Chapman BA, Department of Gastroenterology, Christchurch Hospital and Christchurch School of Medicine, New Zealand.

Among others, it is [was] a nonubiquitous source of amylopectin (clinical trial NCT01708694 “Role of Slowly Digestible [“Resistant”] Starch on Diabetes Risk Factors”). Where “average: 10 – 15 years and $944 million – 2.8 billion USD, 60% R&D cost of failure” (ref: Figure 26 on the stages and costs associated with bringing a bioactive compound onto the pharmaceutical market; Source: Cawthron Institute (2022) p112 The World Bank (International Bank for Reconstruction [c/- worldbank.org "Registrar" RCW 33.36.060] and Development) Report pub. 16Aug23), resveratrol (hydroxystilbenes) and oligosaccharides (stachyose, raffinose (ref: USDA Phyto Database)). Also important is the "interlocking fibers" ie nutraceutical, textile, biostimulant, biofilm (fermentable sugars...PLA [38-42mil/100sq. in day OTR (oxygen transmission rate); 18-22mil/100sq WVTR (water vapour transmission rate); 9.5mil/100sq N₂; 201mil/100sq CO₂] and others) applications across several intertwined WIPO classes.

The evolving "Nice Classification Schedule" includes 6th edition (pub. 15Jun57) class 36 "Insurance; financial affairs; monetary affairs…" [emphasis added; affair n. a. of honour, duel; sl. genitals [L gigno beget] (ref: Wiktionary; Oxford 4th ed)] now "Financial, monetary and banking services…" et al; 8th edition (pub. 27Mar03) c/- 9th edition (pub. 12May08) class 42 "Providing of food…computer programming; services that cannot be placed in other classes" now with addenda classes 43, 44 and 45 "…protection of tangible ["…Intangible Capital" (ref: SSRN 4861968) 2:13-cv-02174 dkt 26 id 16] property…registration of domain names" et al (ref: IPONZ IP Number 1279664 includes "Nice Classification Schedule: Class 12" ie …description of 12th edition (pub. 1Jan23) with priority of use rights [ie TechNet '02 et al]).

And predatory capital, discriminatory pricing, “dispara[tory]” (ref: 2:13-cv-02174 dkt 123 [defamation, trade libel, slander]) fees (see also 2:23-cv-01495-JHC; 3:13-cv-06032) are not rare with "…harm [to] consumers, distort market incentives, and misallocate capital away from genuine innovations” (ref: Venture Predation by M. Wansley, S. Weinstein (pub. 4May23) SSRN 4437360). "Plaintiff is free, even under Brooke Group, to show that the defendant successfully recouped by acquiring a REPUTATION [emphasis added] for predation in other markets" (ref: Beyond Brooke Group: Bringing Reality to the Law of Predatory Pricing by C. S. Hemphill, P. J. Weiser (pub. 2018)). See also "em[blanket]tification of the internet" (Cory Doctorow) remarks by Alvaro Bedoya (ref: "Competition Snuffed Out…" public workshop 18Dec24).

Where “unethical conduct in the setting of the adjudicatory process often results in sanctions [emphasis added]. Perjury of witnesses is one example. Use of a patent [US20080177572] obtained by fraud to exclude a competitor from the market may involve a violation of the antitrust laws…a pattern ["the Court cannot find in this case that Plaintiff claims were groundless" (ref: 2:13-cv-02174-RSM dkt 126, dkt 149 p6)] may emerge which leads the factfinder to conclude that the administrative and judicial processes have been abused" and "misrepresentations, condoned in the political arena, are not immunized when used in the adjudicatory process ” (ref: Cal. Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 513 (1972) opinion by Justice Douglas announced by Chief Justice Burger.

Among others, USPTO 87106203 for "…Burger" deemed a "suggestive mark", moved from "principal" to "supplemental" register with specimen 19May23 "deliver to Seattle 98109". But WFM Westlake was "2200 Westlake Ave, Seattle 98109" ("new stores" email 9Nov06) but actually "2210 Westlake Ave, Seattle 98121" (eg email 28Sep09 and “calendar changed and this event has moved a couple of times” (PN WSL)). See also 2:13-cv-02174 dkt 134 “(stores opened in 2012 had no signage)” and 9th Cir. Appeal 18-35473 dkt 8 p28 "new stores…impermissibly relied on evidence". Where cow "derogatory…a woman considered…difficult" (ref: Wiktionary id 6), Burger, Warren Earl "chief justice of the US Supreme Court (1969-1986)", burger n. "sandwich…other ingredients…or condiments" (ref: American Heritage Dictionary) and "sandwich” (ref: 2008 TTAB LEXIS 603, *21 p9 in USPTO TTAB proceeding 91202219 dkt 74 p46 dilution).

In addition to "New Zealand’s long history of oat production", work also commenced on the use of Marlborough grape skins from "increase biomass long lived vine crop" (ref: the Coriolis Report pub. Jun23). The skins, a byproduct or waste-stream of supplement sector grape seed extract (the extract containing "twice the level of polyphenolic antioxidant compounds compared to grapes grown outside of New Zealand" ref: New Zealand Story Key Messages – Natural Health Products Sector)…replacement of imported seedless sultanas. This would have added additional value and a country specific "geographical indicator" (NZ GI # 1004) to an evolving "good growth platform for NEW ZEALAND" 24/26 nutraceutical product. For instance, Marlborough Sauvignon Blanc grape skins work undertaken in 2008 (c/- 88.3% water, 12% alcohol wine ref: FCDB B1021), Marlborough Pinot Noir grape skins work undertaken in 2018 (c/- 86.9% water, 13.5% alcohol wine ref: FCDB B1028) and phytochemicals with biological activities (ie wine grape "fruit" less "fruit juice" less "seed") equal 99 including 45 non-ubiquitous (ref: USDA Phytochemical Databases…). Or, in other words, too many phyto actives to name in "isolation" so "broad" but "characterizing ingredients" are used.

Hence, even though Eat Right Foods Ltd has incorporated numerous "novel treatments", "scaling insurgency" [L surgo rise] to the market more efficiently (see eg “concerns about the nutritional adequacy of the GFD [gluten free diet], both in terms of what it may lack (fiber and adequate amounts of micronutrients) and what it may contain” [additives, preservatives, GMO’s] and Table 2.13: Novel treatment targets and proposed interventions in "The Recognition, Diagnosis, and Management of Coeliac Disease in New Zealand" by KM Kenrick (pub. Dec18)), a customer is more likely to purchase from the [monopoly, oligopoly] in order to obtain the benefit of the tied & bundled discount that applies to the incontestable “essential” services. Yet tiny amounts are invested in "antitrust enforcement, even though evidence shows it increases productivity" (ref: Tommaso Valletti, Apr24).

Ingredients: certified organic rolled oats (Avena sativa) (33%) , cert organic unhulled stonegound buckwheat flour, cert organic butter (milk), liquid carbohydrate (yeast reduced grape juice, rice dextrins), cert. organic grape skins (6%), certified organic apple pieces, chicory root fiber, certified organic secret spice blend.
Contains: milk [low lactose levels]

Nutritional Information per 25g serving size: available upon request.
Although disclosure of nutritional information does make "reverse engineering" appear somewhat easier, at least two ingredients are non-data-based with proprietary processes.

Shelf life: minimum 12 Weeks, No chilling required. Keep out of sunlight.
Country of Origin: Made in NEW ZEALAND from NEW ZEALAND's bio-economy ingredients and other imported ingredients
Food SAFETY Verification: Certificate Number 2699 (an International Accreditation NEW ZEALAND (IANZ) third-party inspection body audit, pursuant to the Food Act 2014) issued to Eat Right Foods Ltd at NZFS MPI highest risk level, for the manufacture, processing, exporting, packing, holding and distribution of food products. Where the, independent audit company, is ISO 17020 accredited
Additional Audited Compliance: Australian NEW ZEALAND Food Standards Act 1991 (FSANZ Act) and Code 2002; CAFTA Model Recall Procedure: Food Australia, 45(7), 313-316 1993; Codex Alimentarius Commission: Hazard Analysis Critical Control Point (HACCP) System & Guidelines Annex to CAC/RCP 1-1969, Revised 2022; Food Regulations 2015 (LI 2015/310), version July 2023 and Fair Trading Amendment Act 2021
Compliance Testing: of ingredients and final products include, but are not limited to, "physical analysis" (appearance, colour, flavour, aroma), "microbiological analysis" (yeast & mold, coliforms, E.Coli, Salmonella, Staph aureus) and "chemical analysis" (water activity, pH, fibre (AOAC 2011.25), sugars (high performance liquid chromatography (HPLC)), heavy metal (inductively coupled plasma mass spectrometry (ICP-MS)), salt (inductively coupled plasma atomic emission spectrometry (ICP-OES)) etc
Website Verification: Secure Sockets Layer (third-party) certifications: letsencrypt and digicert
Address: PO Box 1525 (Level 1, 6 Church St), Nelson. Zip code: 7040, NEW ZEALAND

Footnotes Include: "Cookie review is next month. Are you referring to your grocery package or you deli package (Clam shell)" email from "(CE CEN)" (ref: 2:13-cv-02174 dkt 26 id 9) [not: "Shell" Robinson[-Patman label printing] or dkt 38 GS1.org (including "Competition Law Caution"). Where "Oyster" was a company acquisition (ref: Investigation of Competition into DIGITAL MARKETS Part II 117th Congress p352) not packaging type or edible mollusc [Gk ostreon] within a "Whole Catch" (USPTO 87829853 et al) issue.

It was put onto shelves, able to be scanned by numerous independently owned organic stores throughout New Zealand, within days of its Jul'05 availability. But, in order for it to be loaded into entrenched duopoloy supermarket systems, it had to wait for ANNUAL category ranging and needed to replace an existing product...a never nimble ("a. (-er, -est, -bly). Agile, swift; (of mind &c.) quick, clever [obsolete nim take]") process.

In the USA, for other cookie products, the "ACTION CODE: R" (reduce) took over a year to fix in the "BAKERY/COFFEE TEAMS: ALWAYS CHECK IN WITH YOUR SIGNMAKER REGARDING WHICH SIGNS YOU WILL NEED" (email 23/2/10). Where "prior to March 2009 our wholesale price was [US]$4.50 and your retail price was [US]$9.49 ie a gross margin of 52.58%. Our wholesale price to you since March 2009 has been [US]$3.50 and now the retail price has been reduced to $8.49 ie a gross margin of 58.78%". The request for further "reducing our retail prices to $7.38 ie a gross margin of 52.58%" (2/3/10) was completely IGNORED. "ignore, v.t. Refuse to take notice of; (of Grand Jury) reject (bill). [IN⁻², L gno- know]; oppugn v.t. Controvert, not admit" (ref: Dictionary, Oxford, Pocket, edition 4). And "Allegro Coffee Company" (2:13-cv-02174 dkt 27-2) was yet another example of “growth by acquisition" [ref: United States v. Philadelphia Nat. Bank, 374 U.S. 321, 370, 83 S.Ct. 1715, 1745 (1963)].

But there were, and still are, other pricing tactics that go under the radar. For example, reductions in pack sizes or reductions in "COUNT" with the appearance of price control where a disCOUNT is considered a set-off or detractor of acCOUNTable advantages [“extended an offer but we have never received a COUNTer” ref: 2:13-cv-02174 mediation letter Mar15]. In this instance, "PLU 69989", FDC ID 333008, NDB # 100192, "10oz (283g)", "6 count", "serving size 1 ea" [47.2g per serve], added flour "enrichments", 3.3% total dietary fiber, "contains a bioengineered food ingredient", added salt and 8.85% added water. Compare this to EATRIGHT® "10.6oz (300g)", a "12 count", "serving size 25g [0.9oz]", no added "enrichment", 7.8% total dietary fiber, no bioengineered ingredients, no added salt, no added water, significant source of vitamin K2 and others yet to be calculated.

Other ignored "SOS, wireless code-signal of extreme distress" was the Safeway Inc USPTO TTAB "Petition to Cancel [EATRIGHT®] with "... taking a "huge TOLL…personally" (email sent to WFMI Leadership Team member, at that time, 24Jul’09). And "clear SIGNAL…ttab proceeding" (ref: May’12; signal, a., n., & v. [L signum]) and "911" date [HEI 2021] . Where "SOS" distress not "SOS" saucepans and USPTO reg # 0128961 "SOS" cleanser and polish but USPTO reg # 0714022 "S.O.S." soap pads with registrant "General Foods Corporation" then multiple assignments, currently "The Clorox Company". Where relevance includes General Foods Corp. v. FTC, 386 F.2d 936, 944-47 (3d Cir. 1967), cert. denied, 391 U.S. 919, 88 S.Ct. 1805, 20 L.Ed.2d 657 (1968) and FTC v. Procter Gamble Co., 386 U.S. 568, 87 S.Ct. 1224, 18 L.Ed.2d 303 (1967) opinion by Justice W "O" Douglas.

® USPTO reg # 0714022 includes specimen (20Oct08) "new blue!" for the ".O." where "table salt, known as Blue Label" [FTC v. Morton Salt Co., 334 U.S. 37 (1948)]
"O" Safeway Inc with a new blue in "O Organics" (USPTO serial # 76634293, 78762988, 76667670, 76667671) but a "multiple offender" (ref: 20 F.R.D. 451 (N.D. Tex. 1957)). And the failing company doctrine and the against giants defense were reaffirmed in United States v. Von 's Grocery Co 384 U.S. 270, 301 (1966) opinion by Justice "BLACK". See also "Vons" relevance 2:13-cv-02174 dkt 32-2 itsgot.com/companies/2-Albertsons-Inc and itsgot.com/companies/37-Vons.
® Whole Foods stylized "O" (USPTO reg. 2986013 (earrings, fasteners [ref: ROMAG FASTENERS, INC., Plaintiff, v. FOSSIL, INC...Zappos.Com, Inc., and Zappos Retail, Inc., 979 F. Supp. 2d 264] reg. 5091860 and reg. 4346441 [on 5Oct12 with specimen "seller: Whole Foods Market, Inc"])
© "O-EATRI" online shop orders
0 or zero outer circle for ™ and no particular symbol used for patent, designs, plant varietal rights, geographical indicators
O FTC v. WFMI case 0710114 dkt 9324 ’buying [Wild OATS; ticker "OATS"] . . . we eliminate forever the possibility of Kroger, Super Value, or Safeway [leveraging] their brand equity’ (dkt 32-2 itsgot.com/companies/418-Wild-Oats-Markets-Inc). Where New Zealand Commerce Commission issued "Guidelines on the Application of Competition Law to Intellectual Property Rights" (pub. Apr'23).

"Karma happens" according to BRAC [Baton Rouge Area Chamber of Commerce] Shareholders Meeting (24Mar15) with keynote speaker "Dr Elstrott" [Sanskrit karma action (ref: OX Dict.)]; Whole Payout?...$171 million on Amazon Deal (ref: expressnews.com 27Jun21). But "speaker's" email to Ms. Douglas-Clifford was that inFRINGEment settlement was less than $50m so "operating issues...board not involved" (15Nov12) where 2:13-cv-02174 dkt 98-7 p2 "annual shareholders meeting" (Sep'12). But “Whole Food Company, Inc. * Louisiana", as well as "Whole Foods Market Pacific Northwest, Inc. * Delaware” was “* Doing business as Whole Foods Market, Inc” (ref: dkt 27-2). And entrepreneurial exporters will not invest or continue to invest if they cannot keep the fruits of their investment (paraphrased combinations of in-shop research).

Where "One Medical" [also referred to as "leverage, clout, or bargaining power"] merger or acquisition (ref: 603 F.2d 263 (2d Cir. 1979)) or JV-alliance [Northern Securities Company 1901 alliance of banker JP Morgan...magnates] "Haven" (USPTO 88412827; "SafeHaven" 3776002 issue) and significant tie-in "if medical practice requires the consumption of functional foods as a prerequisite for treatment of a certain medical condition” (ref: Leveraging growth in the emerging functional foods industry by PWC pub. Aug'09; truthinadvertising.org). But "One Medical" had NO "high barriers to entry" class 5 trademarks, yet WFM (USPTO 87726799 "...Appro ed") does and “measurement of trademark [ab]use is a new science” (ref: Intellectual Property and the US Economy: 2016 update). Where that acquisition created another "deepdown" burial of T. Colin Campbell, Ph.D. email evidence (19Nov11) brand tarnishment of EATRIGHT in "Report on Permanent Weight Loss" by Roberta Russell (pub. 29Sep16; [unearthed 5Feb20] also 2:13-cv-02174 dkt 64 id 19 "studies regarding obesity"; dkt 27-2 "WFM Medical and Wellness Centers, Inc.").

Where "ONE" also present in Qwest Communications International Inc. v. Oneqwest, LLC, NO. CO2-829R (W.D. Wash. Nov. 11, 2002) ref: William Mitchell College of Law Study on TM Damages (but 19Sep14 attachment Graph U "average" (adjusted to 2007 C.P.I.)); “data regarding trademark litigation is dropping precipitously” (ref: Prof. KL Port). Where Harvard Law Review volume 131, No. 4 “Are we running out of trademarks?” footnote 228 “prevalence of trademark bullying prompted the Department of Commerce to report to Congress on the issue in 2011”. The "Report to Congress" (pub. Apr11) included footnote 43: "309 F. Supp. 1154, 1161 (S.D. Ind. 1969)" yet 2:13-cv-02174 [WFMI] "design intended to force capitulation and monopolization”’; footnote 52 USD "costs" [ex (Lawrence) Zelle, Hofmann, Voelbel, (Daniel S.) Mason & Gette, LLP [zelle.com] on 7Jun08 required n/a “funding”] and the public "roundtable" titled “Is There a Bull in the Trademark Shop?” (held 10Feb11) c/-EATRIGHT® products instore on non-round non-equi-tables.

See again General Foods Corp. v. FTC, 386 F.2d 936, 944-47 where General Foods Corporation (hereinafter "G.F.") NB. not “GF”, “G.F.” or "G/F" (“gluten-free foods” abbreviation) in the wider USPTO reg. 3694692 class 5 “food preparations adapted for medical purposes”. Where EATRIGHT® formulations focus, always, on more than just "GF" ... “accommodating individuals with certain health conditions” and not “Lousewife” (louse 1. n. (pl. lice). Kinds of parasitic insect. 2. v.t. Rid of lice (ref: Ox Dictionary 4th ed) that infests consumers irrespective of gender. But relevance to “entry of such a large, well-financed, aggressive competitor would necessarily hamper whatever effect potential competition had in the pre-merger market. This result follows because the threat of entrance into a given market by potential competitors is reduced to the extent that entry barriers are raised”.

Where “there were so many other factors in play, such as private label, you know, given the global [2:13-cv-02174 dkt 26-2 “45% less sugar, low glycaemic response, New Zealand handmade…”] carrot [and multiple other flavor capabilities] that didn't go ahead“ (ref: 10Mar15 p145). See also “Wildoats...pending merger with Whole Foods” (20Feb07 email 28Feb07 reply) and “All our products [at that time, supplied to] “Whole Foods Market Northern California, Pacific North West, mid Atlantic and Rocky Mountain regions [were]
* Gluten & Wheat free
* Egg free (poach v.t. cook (egg); steal, pilfer, rob[b, walter ref: 2:13-cv-02174 dkt 27-7])
* Nut & Peanut free
* Include certified organic ingredients
* Handmade in small batches
* Made with ingredients you can pronounce
* No hydrogenate oils, no refined sugar, no gums and no sugar alcohols…
[a] 65% less sugar than an average cookie and high in fibre. Our plum and carrot jams [were] 50% less sugar than regular jam/jelly…We [did visit] Boulder Colorado Wednesday 7th March and Thursday 8th March [but didn't] present samples to" [Wild Oats Inc, Home Office].

See also case filing date 12Jul12 1:12-cv-00633 by "Whole Foods Market IP, L.P." not "WFM IP Investments Inc, WFM IP Management Inc etc 2:13-cv-02174 dkt 27-2) over "CORE…" [core "n. horny capsule containing seeds of apple &c; innermost part or heart; nucleus etc" (ref: OX Dict.]. Date relevance to "manufacturing plant and equipment of Eat Right Foods but not the company...registration rights…remain owned...as did other intellectual property" (pub. 16Jul12). Where USPTO reg. 4016802 "NOS Notice of Suit Incoming" (19Sep12), specimen ("excellent source of vitamin A" blue-green; 13Jun11) and "Whole Foods…Vitamin Shoppe…resolving ALL claims" (pub. 3Oct12) and USPTO reg. 4346441 5Oct12).

Post “WILD Oats” [1st word “Wild”, 2nd word “Oats” 548 F.3d 1028 (2008)] included "heavy metal" [ICP--MS] tested safety risks [Starkeywater “Deepdown”, Deepwater] issues. Abbreviated "B.P.", 2nd word “Petroleum” (ref: 367 F. Supp. 1226 (C.D. Cal 1973) aff'd mem., 418 US. 906 (1974)). 1st word, “British”, relevance [2:13-cv-02174 dkt 27-2] Fresh & WILD Holding Limited, Fresh & WILD Limited * acquisitions, “where were you born?” (25Jun14 p12 ln 7). See also “Whole Foods Market – WO, Inc” state/Jurisdiction “British Columbia” dkt 27-2 [not just 2nd word “Columbia” fragment but eg the “only cookies on earth I can eat!!...many Smiles” …@…nasa 25Feb05]. Great "Britain” also in USPTO TTAB 91202219 dkt 74 p22 ln20-21 “(3) A customer has inquired whether Opposer is affiliated with or connected to EAT RIGHT UNITED KINGDOM. Id., 89:6-15”. Where the "market is highly concentrated with high barriers to entry...influence is exerted from its presence on the EDGE [emphasis added] of the market”. edge n. border, fringe, verge, margin, outlier, flank, rim, frame, hull (ref: dictionary)

BUT ... Q. Why "licensing agreement instead of a coexistence agreement? A. “$43 billion giant, and I was very intimidated" (p112 ln19; p113 25Jun14) yet coexistence was a “NAPCS code 31256 Exclusive rights” for “EAT RIGHT, EAT-RIGHT, EATRIGHT” but then “NAPCS code 31470 [NAKED] Licensing of rights to use intellectual property by trademark” by NE/Leville to WFMI et al. Interrogatory request # 42 included emails to “Interbrand” (Apr-May’10; 2:13-cv-02174) where USPTO calculations used “Interbrand’s report of Best Global Brands” [three industries are missing from the list of trade¬mark-intensive industries listed in Table A-3...grocery stores (NAICS 4451), sugar con-fectionery product manufacturing (NAICS 3113), and department Stores (NAICS 4521)] ref: Intellectual Property and the US Economy: 2016 NOT “Brand Directory Global 500” (USPTO 88728762 response to office action p4 25Sep20).

Where “protecting [‘that’ woman] competitor…[1989] 2 NZLR 554 (HC) at 60…[1990] 2 NZLR 662 at 700” (ref: id 24, footnote 12 ComCom Mkt Pwr Guide pub. Mar22 and 9th Cir. 15-35524 oral argument) from predatory [acquisition, price, copyright ignoring bots et al] discrimination”

3 pack cookie 75 g	NZ$ 1.69	Quantity
12 pack cookie 300g	NZ$ 6.57	Quantity
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