UNITED STATES PATENT AND TRADEMARK OFFICE
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SERIAL NO: 76/196962
APPLICANT: Anderson-Tully Veneers, L.P.
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CORRESPONDENT ADDRESS: DARREN B COHEN HALL DICKLER KENT GOLDSTEIN & WOOD LLP 909 3RD AVE FL 27 NEW YORK NY 10022-4731
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RETURN ADDRESS: Commissioner for Trademarks 2900 Crystal Drive Arlington, VA 22202-3514 ecom114@uspto.gov
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MARK: CAPELLA
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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 76/196962
This letter responds to the applicant’s communication filed on August 28, 2003.
The specimen is unacceptable as evidence of actual trademark use because they are sheet advertising. Invoices, announcements, order forms, bills of lading, leaflets, brochures, publicity releases and other printed advertising material generally are not acceptable specimens. In re Bright of America, Inc., 205 USPQ 63 (TTAB 1979); TMEP §§904.05 and 904.07. See In re Ultraflight Inc., 221 USPQ 903 (TTAB 1984). The applicant must submit a specimen showing the mark as it is used in commerce. 37 C.F.R. §2.56. Examples of acceptable specimens are tags, labels, instruction manuals, containers, and photographs that show the mark on the goods or packaging. TMEP §§904.04 et seq. 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 at least as early as the filing date of the application. 37 C.F.R. §2.59(a); TMEP §904.09.
Applicant claims that the specimens are point of sale displays and the only practical matter to use of the mark and applicant’s competitors do likewise. No evidence has been presented to corroborate this point. However, the specimen, as presented, does not even represent a point of sale display since applicant has not established how customers can order the goods as applicant indicated in its response. If the specimen is a point of sale display that is used in association with the goods, then, the applicant must submit a clear photograph showing how the specimen is displayed. 37 C.F.R. §2.61(b). See In re Ancha Electronics Inc., 1 USPQ2d 1318 (TTAB 1986); TMEP §§904 and 904.06.
Please note that the only appropriate responses to a final action are either (1) compliance with the outstanding requirements, if feasible, or (2) filing of an appeal to the Trademark Trial and Appeal Board. 37 C.F.R. §2.64(a). If the applicant fails to respond within six months of the mailing date of this refusal, this Office will declare the application abandoned. 37 C.F.R. §2.65(a).
/Raul Cordova/
Trademark Examining Attorney
Law Office 114
703-308-9114 ext. 136
Rightfax 703-746-6429
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.