UNITED STATES PATENT AND TRADEMARK OFFICE
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SERIAL NO: 76/456277
APPLICANT: XM Satellite Radio Inc.
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CORRESPONDENT ADDRESS: NANCY S. LAPIDUS SHAW PITTMAN LLP 2300 N STREET, N.W. WASHINGTON, D.C. 20037-1128
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RETURN ADDRESS: Commissioner for Trademarks 2900 Crystal Drive Arlington, VA 22202-3513 ecom108@uspto.gov
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MARK: ???ASK!
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CORRESPONDENT’S REFERENCE/DOCKET NO: 39041.0002.0
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 76/456277
The assigned examining attorney has reviewed the referenced application and determined the following:
The examining attorney has searched the Office records and has found no similar registered or pending mark which would bar registration under Trademark Act Section 2(d), 15 U.S.C. §1052(d). TMEP §704.02.
Before the application can proceed in the registration process, applicant must respond to the following requirements.
The drawing of the mark contains color, in particular, the drawing contains shades of gray. A drawing must be in black and white. Therefore, the applicant must submit a new drawing showing the mark clearly and conforming to 37 C.F.R. §2.52. If the applicant wishes to depict color in the mark, then the applicant must provide a clear and specific description of what the color is and where the color appears in the mark. 37 C.F.R. §2.52(a)(2)(v); TMEP §807.09(c).
If the applicant includes a description of the color and where it appears in the mark, the Office will presume that the applicant is claiming color as a feature of the mark. If the applicant does not consider color to be a feature of the mark, the applicant should not submit a description of the color and where it appears in the mark.
The requirements for a special‑form drawing are as follows:
(1) The drawing must appear in black and white; no color is permitted.
(2) Every line and letter must be black and clear.
(3) The use of gray to indicate shading is unacceptable.
(4) The lining must not be too fine or too close together.
(5) The preferred size of the area in which the mark is displayed is 2½ inches (6.1 cm.) high and 2½ inches (6.1 cm.) wide. It should not be larger than 4 inches (10.3 cm.) high or 4 inches (10.3 cm.) wide.
(6) If the reduction of the mark to the required size renders any details illegible, the applicant may insert a statement in the application to describe the mark and these details.
37 C.F.R. §2.52; TMEP §§807.01(b) and 807.07(a). The Office will enforce these drawing requirements strictly.
The Office prefers that the drawing be depicted on a separate sheet of smooth, nonshiny, white paper 8 to 8½ inches (20.3 to 21.6 cm.) wide and 11 inches (27.9 cm.) long, and that the sheet contain a heading listing, on separate lines, the applicant’s complete name; the applicant’s address; the goods or services recited in the application; and, if the application is filed under Section 1(a) of the Act, the dates of first use of the mark and of first use of the mark in commerce; or, if the application is filed under Section 44(d), the priority filing date of the foreign application. 37 C.F.R. §2.52(b); TMEP §§807.01(a), 807.01(b), 807.01(c) and 807.07(a).
APPLICATIONS FILED WITHOUT A VERIFIED STATEMENT - SECTION 1(a)
The application must be signed, and verified or supported by a declaration under 37 C.F.R. Section 2.20. 37 C.F.R. Section 2.33. No signed verification or declaration was provided. Therefore, the applicant must provide a signed verification or signed declaration attesting to the facts set forth in the application, and attesting that the mark is in use in commerce and was in use in commerce on or in connection with the goods or services listed in the application as of the application filing date. 37 C.F.R. Section 2.34(a)(1)(i).
The following declaration is provided for the applicant's convenience:
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 he/she is properly authorized to execute this application on behalf of the applicant; he/she believes the applicant to be the owner of the trademark/service mark sought to be registered, that the mark is in use in commerce and was in use in commerce on or in connection with the goods or services listed in application as of the application filing date; that to the best of his/her knowledge and belief no other person, firm, corporation, or association has the right to use the mark in commerce, either in the identical form thereof or in such near resemblance thereto as to be likely, when used on or in connection with the goods/services of such other person, to cause confusion, or to cause mistake, or to deceive; and that 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)
For future reference, please note that current status and status date information is available, via the World Wide Web, for all federal trademark registration and application records maintained in the automated Trademark Reporting and Monitoring (TRAM) system. The information may be accessed through the Office's web site at: http://tarr.uspto.gov. If additional information regarding the status of an application or registration is required, callers may telephone the Trademark Assistance Center at (703) 308-9000 and request a status check.
For inquiries or questions about this Office Action, please contact the assigned examining attorney.
/Monique C. Miller/
Trademark Examining Attorney
Law Office 108
(703) 308-9108 ext. 228
(703) 746-8108(FAX)
ecom108@uspto.gov [for official responses only]
Increase in Trademark Filing Fee
Effective January 1, 2003, the fee for filing an application for trademark registration will be increased to $335.00 per International Class. The USPTO will not accept applications that are filed on or after that date that are not accompanied by a minimum of $335.00.
Additionally, the fee for amending an existing application to add an additional class or classes of goods/services will be $335.00 per class.
A Final Rule amending the Rules of Practice in Trademark Cases to provide for this fee increase was published in the Federal Register on November 27, 2002 (67 Fed. Reg. 70,847 (2002)). http://a257.g.akamaitech.net/7/257/2422/14mar20010800/edocket.access.gpo.gov/2002/02-30086.htm>
Applicants may now file changes of correspondence via a new form on TEAS. Address changes may be performed on up to 20 cases at a time. The Trademark Office strongly encourages applicants to use this timesaving form, which is available online at: http://eteas.gov.uspto.report/V2.0/ca200/WIZARD.htm
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.