UNITED STATES PATENT AND TRADEMARK OFFICE
SERIAL NO: 76/171161
APPLICANT: Birger, Alexander
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CORRESPONDENT ADDRESS: ALEXANDER BIRGER 2247 CLEMENT ST UNIT B SAN FRANCISCO CA 94121-2018
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RETURN ADDRESS: Commissioner for Trademarks 2900 Crystal Drive Arlington, VA 22202-3513 ecom111@uspto.gov
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MARK: NETASPEN
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CORRESPONDENT’S REFERENCE/DOCKET NO: N/A
CORRESPONDENT EMAIL ADDRESS:
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Please provide in all correspondence:
1. Filing date, serial number, mark and applicant's name. 2. Date of this Office Action. 3. Examining Attorney's name and Law Office number. 4. Your telephone number and e-mail address.
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Serial Number 76/171161
The Office has reassigned this application to the undersigned examining attorney. The assigned examining attorney has reviewed the statement of use filed on January 28, 2003 and has determined the following.
A specimen is unacceptable if it does not show use of the service mark in relation to the identified service. Intermed Communications, Inc. v. Chaney, 197 USPQ 501 (TTAB 1977). The specimen must show use of the mark “in the sale or advertising of services.” Trademark Act Section 45, 15 U.S.C. §1127; In re Universal Oil Products Co., 476 F.2d 653, 177 USPQ 456 (C.C.P.A. 1973); TMEP §§1301.04 et seq. Therefore, the specimen must show the mark in reference to the particular services identified.
In this case, the specimen is unacceptable as evidence of actual service mark use because it does not show use of the mark in the sale or advertising of the online directory information services specified. TMEP §904.05. The applicant must submit a specimen showing the mark as it is used in commerce. 37 C.F.R. §§2.56 and 2.88(b)(2). Examples of acceptable specimens are signs, photographs, brochures or advertisements that show the mark used in the sale or advertising of the services. TMEP §1301.04. The applicant must verify, with an affidavit or a declaration under 37 C.F.R. §2.20, that the substitute specimen was in use in commerce prior to the expiration of the time allowed to the applicant for filing a statement of use. 37 C.F.R. §2.59(b); TMEP §904.09.
If an amendment of the dates‑of‑use clause is necessary in order to state the correct dates of first use, the applicant must verify the amendment with an affidavit or a declaration in accordance with 37 C.F.R. §2.20. 37 C.F.R. §2.71(c); TMEP §903.05.
CONCLUSION
If the applicant has any questions or needs assistance in responding to this Office action, please telephone the assigned examining attorney.
Ingrid C. Eulin
Trademark Examining Attorney
Law Office 111
(703) 308-9111 ext 225
(703) 308-7182 by fax
How to respond to this Office Action:
To respond formally using the Office’s Trademark Electronic Application System (TEAS), visit http://www.gov.uspto.report/teas/index.html and follow the instructions.
To respond formally via E-mail, visit http://www.gov.uspto.report/web/trademarks/tmelecresp.htm and follow the instructions.
To respond formally via regular mail, your response should be sent to the mailing Return Address listed above and include the serial number, law office and examining attorney’s name on the upper right corner of each page of your response.
FOR INQUIRIES OR QUESTIONS ABOUT THIS OFFICE ACTION, PLEASE CONTACT THE ASSIGNED EXAMINING ATTORNEY.