UNITED STATES PATENT AND TRADEMARK OFFICE
SERIAL NO: 76/402490
APPLICANT: DR. JAY S. NITZKIN, DDS, P.C.
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CORRESPONDENT ADDRESS: MARK A. CANTOR BROOKS & KUSHMAN P.C. 1000 TOWN CENTER, 22ND FLOOR SOUTHFIELD, MICHIGAN 48075
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RETURN ADDRESS: Commissioner for Trademarks 2900 Crystal Drive Arlington, VA 22202-3514
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MARK: COMFORT TECH
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CORRESPONDENT’S REFERENCE/DOCKET NO: NITZKIN
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 76/402490
This Office Action responds to the applicant’s correspondence dated December 8, 2003. Having carefully considered the applicant’s statement of use, the examining attorney has determined the following.
The specimen is unacceptable as evidence of actual service mark use because it is merely a transcript of a radio commercial, rather than a recording thereof, which is actually used in commerce. The applicant must submit a substitute specimen showing the mark as it is used in commerce. 37 C.F.R Sections 2.58 and 2.88(b)(2). Examples of acceptable specimens are signs, photographs, brochures or advertisements that show the mark used in the sale or advertising of the services. TMEP section 1301.04. 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.
In addition, if an amendment of the dates‑of‑use clause is necessary in order to state the correct dates of first use, the applicant must also verify that amendment with an affidavit or a declaration in accordance with 37 C.F.R. Section 2.20. 37 C.F.R. Section 2.71(d)(1); TMEP section 904.05. The following is a properly worded declaration under 37 C.F.R. Section 2.20.
The specimen was in use in commerce prior to the expiration of the time allowed to the applicant for filing a statement of use. 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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III. CONCLUSION
If the applicant has any questions or needs assistance in responding to this Office action, please do not hesitate to telephone the assigned examining attorney.
/Nicholas K.D. Altree/
Trademark Attorney
Law Office 108
(703) 308-9108, ext. 132
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 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.