UNITED STATES PATENT AND TRADEMARK OFFICE
SERIAL NO: 76/231524
APPLICANT: ECOLOTREE, INC.
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CORRESPONDENT ADDRESS: EDMUND J. SEASE ZARLEY MCKEE THOMTE VOORHEES & SEASE 801 GRAND AVE STE 3200 DES MOINES IA 50309-8009
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RETURN ADDRESS: Commissioner for Trademarks 2900 Crystal Drive Arlington, VA 22202-3514 ecom113@uspto.gov
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MARK: ECAP
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CORRESPONDENT’S REFERENCE/DOCKET NO: T52636US0
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 76/231524
This letter responds to the applicant’s communication filed on August 1, 2003.
Specimen
The specimen is unacceptable as evidence of actual trademark use because it does not show use of the mark on any goods identified in the identification of goods, i.e., live trees. The original specimen describes how the goods and applicant’s business operate, but do not show the mark in association with the goods for which registration is sought. The substitute specimen appears to be an invoice for services to explain the functioning of the goods but, once again, do not show the mark in association with any goods identified in the application.
Generally, invoices, announcements, order forms, bills of lading, leaflets, brochures, publicity releases and other printed advertising material are not acceptable specimens for goods. 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.
Pending an adequate response to the above, the examining attorney refuses registration under Trademark Act Sections 1, 2, and 45, 15 U.S.C. §§1051, 1052, and 1127, because the record does not show use of the proposed mark as a trademark. TMEP §§904.11 and 1301.02 et seq.
Although the examining attorney has refused registration, the applicant may respond to the refusal to register by submitting evidence and arguments in support of registration.
The refusal under Sections 1,2 and 45 is maintained and made FINAL.
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. Section 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. Section 2.65(a).
/Michael P. Keating/
Trademark Attorney
Law Office 113
(703) 308-9113 x232
(703) 746-8113 (fax)
ecom113@uspto.gov
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.