UNITED STATES PATENT AND TRADEMARK OFFICE
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SERIAL NO: 76/215379
APPLICANT: Vacheron & Constantin S.A.
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CORRESPONDENT ADDRESS: HELEN M. O'SHAUGHNESSY 2 EAST 52ND STREET NEW YORK NEW YORK 10022
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RETURN ADDRESS: Commissioner for Trademarks 2900 Crystal Drive Arlington, VA 22202-3514 ecom108@uspto.gov
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MARK: MALTE
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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 76/215379
Upon careful review of the request for reconsideration, the trademark examining attorney finds the arguments set forth therein unpersuasive and determines that no new issue has been raised and no new compelling evidence has been presented with regard to the point(s) at issue in the final action. TMEP §715.03(a). The finality of the requirement is therefore continued.
Applicant has 6 months from the mailing date of the final office action mailed August 25, 2003 to meet the requirements of said action. The filing of a request for reconsideration does not extend the time for filing a proper response to the final action, which runs from the date the final action was mailed. 37 C.F.R. §2.64(b); TMEP §§715.03 and 715.03(c).
PLEASE NOTE: Applicant may not file a petition to revive under 37 C.F.R. §2.66, based on unintentional delay. TMEP §§715.03(c) and 1714.01(f)(ii). A request for reconsideration of a final refusal that is not accompanied by a notice of appeal is treated as an incomplete response to the final Office action. 37 C.F.R. §2.64(a); TMEP §1714.01(f)(ii). If the trademark examining attorney continues the refusal(s) and/or requirement(s), and the deadline for response to the final action has expired, the application is abandoned. 15 U.S.C. §1062(b); 37 C.F.R. §2.65(a); TMEP §715.03(c).
The specimen submitted with the request for reconsideration is unacceptable as evidence of actual trademark use because it is advertising. The applicant must submit a specimen showing the mark as used in commerce. 37 C.F.R. §2.56. Examples of acceptable specimens are tags, labels, instruction manuals, containers or 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. Jim Dandy Co. v. Siler City Mills, Inc., 209 USPQ 764 (TTAB 1981); 37 C.F.R. §2.59(a); TMEP §904.09.
Furthermore, 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.
/Robert Clark/
Trademark Attorney
Law Office 108
703-308-9108 ext. 162
Fax: 703-746-8108
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.