UNITED STATES PATENT AND TRADEMARK OFFICE (USPTO)
OFFICE ACTION (OFFICIAL LETTER) ABOUT APPLICANT’S TRADEMARK APPLICATION
APPLICATION SERIAL NO. 76392855
MARK: MMS
|
|
CORRESPONDENT ADDRESS: |
CLICK HERE TO RESPOND TO THIS LETTER: http://www.gov.uspto.report/trademarks/teas/response_forms.jsp
|
APPLICANT: Midwest Medical Supply Co., L.L.C.
|
|
CORRESPONDENT’S REFERENCE/DOCKET NO: CORRESPONDENT E-MAIL ADDRESS: |
|
TO AVOID ABANDONMENT OF APPLICANT’S TRADEMARK APPLICATION, THE USPTO MUST RECEIVE APPLICANT’S COMPLETE RESPONSE TO THIS LETTER WITHIN 6 MONTHS OF THE ISSUE/MAILING DATE BELOW.
THIS IS A FINAL ACTION.
Registration No. 2825319 has been cancelled and is no longer a bar to registration of the applicant’s mark.
Section 2(d) Likelihood of Confusion Refusal
Registration was previously refused under Section 2(d) of the Trademark Act in view of Registration No. 3826721. That refusal is repeated and made FINAL.
Comparison of the Marks
The applicant’s mark is composed of the letters MMS in standard character form. The registrant’s mark is composed of the wording MMS MEDICAL MEASUREMENT SYSTEMS and design in stylized form.
The registrant has disclaimed the wording MEDICAL MEASUREMENT SYSTEMS. That portion and the design portion of the registrant’s mark are not as strong as the MMS portion of the mark. The applicant’s mark is identical to the dominant portion of the registrant’s mark.
In essence, the applicant has simply deleted matter from the registered mark in order to form its mark. The mere deletion of wording from a registered mark may not be sufficient to overcome a likelihood of confusion. See In re Mighty Leaf Tea, 601 F.3d 1342, 94 USPQ2d 1257 (Fed. Cir. 2010); In re Optica Int’l, 196 USPQ 775, 778 (TTAB 1977); TMEP §1207.01(b)(ii)-(iii). Applicant’s mark does not create a distinct commercial impression because it contains the same common wording as registrant’s mark, and there is no other wording to distinguish it from registrant’s mark.
In a likelihood of confusion determination, the marks are compared for similarities in their appearance, sound, meaning or connotation and commercial impression. In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 1361, 177 USPQ 563, 567 (C.C.P.A. 1973); TMEP §1207.01(b). Similarity in any one of these elements may be sufficient to find a likelihood of confusion. In re White Swan Ltd., 8 USPQ2d 1534, 1535 (TTAB 1988); In re Lamson Oil Co., 6 USPQ2d 1041, 1043 (TTAB 1987); see TMEP §1207.01(b).
The applicant’s mark is sufficiently similar to the dominant portion of the registrant’s mark.
Comparison of the Goods and Services
The registrant’s goods are medical products. The applicant’s services are distributorship services in the field of medical products. The applicant’s services provide or sell the registrant’s type of goods. The evidence attached below from the applicant’s website, www.mmsmedical.com shows that applicant does provide medical goods in the same field as the registrant’s medical goods. The class of customer would be the same for the goods and services and the goods purchased through the applicant’s services and the registrant’s goods could be used by the same user during the same procedure.
The attached evidence from x-search also shows that single entities provide distributorship services in the medical field and also provide medical products and that they market those goods and services under the same trademarks.
The applicant’s mark is sufficiently similar to the registered mark such that when the marks are used on the related goods and services, consumers are likely to be confused as to the source of the goods and services. The refusal to register the applicant’s mark in accordance with Section 2(d) of the Trademark Act is made FINAL.
(1) Submitting a response that fully satisfies all outstanding requirements, if feasible; and/or
(2) Filing an appeal to the Trademark Trial and Appeal Board, with an appeal fee of $100 per class.
37 C.F.R. §§2.6(a)(18), 2.64(a); TBMP ch. 1200; TMEP §714.04.
In certain rare circumstances, a petition to the Director may be filed pursuant to 37 C.F.R. §2.63(b)(2) to review a final Office action that is limited to procedural issues. 37 C.F.R. §2.64(a); TMEP §714.04; see 37 C.F.R. §2.146(b); TBMP §1201.05; TMEP §1704 (explaining petitionable matters). The petition fee is $100. 37 C.F.R. §2.6(a)(15).
/Kelley L. Wells/
Trademark Attorney
Law Office 105
571-272-9312
kelley.wells@uspto.gov
TO RESPOND TO THIS LETTER: Go to http://www.gov.uspto.report/trademarks/teas/response_forms.jsp. Please wait 48-72 hours from the issue/mailing date before using TEAS, to allow for necessary system updates of the application. For technical assistance with online forms, e-mail TEAS@uspto.gov. For questions about the Office action itself, please contact the assigned trademark examining attorney. E-mail communications will not be accepted as responses to Office actions; therefore, do not respond to this Office action by e-mail.
All informal e-mail communications relevant to this application will be placed in the official application record.
WHO MUST SIGN THE RESPONSE: It must be personally signed by an individual applicant or someone with legal authority to bind an applicant (i.e., a corporate officer, a general partner, all joint applicants). If an applicant is represented by an attorney, the attorney must sign the response.
PERIODICALLY CHECK THE STATUS OF THE APPLICATION: To ensure that applicant does not miss crucial deadlines or official notices, check the status of the application every three to four months using Trademark Applications and Registrations Retrieval (TARR) at http://tarr.gov.uspto.report/. Please keep a copy of the complete TARR screen. If TARR shows no change for more than six months, call 1-800-786-9199. For more information on checking status, see http://www.gov.uspto.report/trademarks/process/status/.
TO UPDATE CORRESPONDENCE/E-MAIL ADDRESS: Use the TEAS form at http://www.gov.uspto.report/teas/eTEASpageE.htm.
|
|
|||
|
|
|
|||
|
|
|
|||
|
|
|
|||
|
|
|
|||
|