UNITED STATES PATENT AND TRADEMARK OFFICE
SERIAL NO: 76/440196
APPLICANT: Michaels, David
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CORRESPONDENT ADDRESS: ROBERT RYAN MORISHITA ANDERSON & MORISHITA 2725 S. JONES BLVD., SUITE 102 LAS VEGAS, NEVADA 89146
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RETURN ADDRESS: Commissioner for Trademarks 2900 Crystal Drive Arlington, VA 22202-3514 ecom111@uspto.gov
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MARK: CAN DO
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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 76/440196 MARK: CAN DO
With respect to applicant’s communication filed on January 31, 2003, in which the applicant has submitted arguments regarding the prior pending applications Nos. 75828087 and 76396482. The assigned examining attorney has reviewed the applicant’s arguments and has determined the following.
When the applicant’s mark is compared to a registered mark, “the points of similarity are of greater importance than the points of difference.” Esso Standard Oil Co. v. Sun Oil Co., 229 F.2d 37, 108 USPQ 161 (D.C. Cir.), cert. denied, 351 U.S. 973, 109 USPQ 517 (1956). TMEP §1207.01(b).
The test of likelihood of confusion is not whether the marks can be distinguished when subjected to a side‑by‑side comparison. The issue is whether the marks create the same overall impression. Visual Information Institute, Inc. v. Vicon Industries Inc., 209 USPQ 179 (TTAB 1980). The focus is on the recollection of the average purchaser who normally retains a general rather than specific impression of trademarks. Chemetron Corp. v. Morris Coupling & Clamp Co., 203 USPQ 537 (TTAB 1979); Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106 (TTAB 1975); TMEP §1207.01(b).
The undersigned counsel has reviewed the applicant’s arguments and have not found them to be persuasive and therefore continues the refusal issued with respect to the two prior pending applications. Accordingly, the application is therefore suspended pending the disposition of the prior pending applications.
Georgia Ann Carty
/Georgia Ann Carty/
Trademark Attorney
Law Office 111
(703) 308-9111, Ext. 150
ecom 111 @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 SPECIFIC INQUIRIES OR QUESTIONS ABOUT THIS OFFICE ACTION, PLEASE CONTACT THE ASSIGNED EXAMINING ATTORNEY.