UNITED STATES PATENT AND TRADEMARK OFFICE
SERIAL NO: 76/283402
APPLICANT: Everest Biomedical Instruments Company
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CORRESPONDENT ADDRESS: RICHARD E. HAFERKAMP THOMPSON COBURN LLP ONE US BANK PLZ ST LOUIS MO 63101
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RETURN ADDRESS: Commissioner for Trademarks 2900 Crystal Drive Arlington, VA 22202-3514 ecom105@uspto.gov
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MARK: AUDIOTRAC
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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 76/283402
The assigned examining attorney has reviewed the statement of use filed on June 5, 2003 and has determined the following.
The specimen that depicts use of the mark is unacceptable for it is a technical information sheet that is equivalent to 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 sections 905.05 and 905.07. 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. Sections 2.56 and 2.88(b)(2). Examples of acceptable specimens are tags, labels, instruction manuals, containers, and photographs that show the mark on the goods or packaging.
Furthermore the specimen does not show use of the mark for the goods identified in the statement of use. Rather the specimen only discusses the mark in relation to software - - it does not reflect use of the mark in relation to the “hearing screening devices and related software packages sold as a unit” identified in the application. The applicant must submit a specimen showing use of the mark for the goods specified. 37 C.F.R. Sections 2.56 and 2.88(b)(2). The applicant must verify, with an affidavit or a declaration under 37 C.F.R. Section 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. Section 2.59(b); TMEP section 905.10.
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. Section 2.20. 37 C.F.R. Section 2.71(c); TMEP section 904.05.
The statement supporting use of the substitute specimen must read as follows:
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.
The applicant must sign this statement either in affidavit form or with a declaration under 37 C.F.R. Section 2.20. The following is a properly worded declaration under 37 C.F.R. Section 2.20. At the end of the response, the applicant should insert the declaration signed by someone authorized to sign under 37 C.F.R. Section 2.33(a).
The undersigned, being hereby warned that willful false statements and the like so made are punishable by fine or imprisonment, or both, under 18 U.S.C. 1001, and that such willful false statements may jeopardize the validity of the application or any resulting registration, declares that the facts set forth in this application are true; all statements made of his/her own knowledge are true; and all statements made on information and belief are believed to be true.
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(Signature)
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(Print or Type Name and Position)
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(Date)
If the applicant has any questions or needs assistance in responding to this Office action, please telephone the assigned examining attorney.
/Karen K. Bush/
Trademark Examining Attorney
Law Office 105
703-660-6568 (direct)
703-308-9105 ext 182
Fax: 703-872-9145
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.