UNITED STATES PATENT AND TRADEMARK OFFICE
SERIAL NO: 76/460712
APPLICANT: Phoenix Products, Inc.
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CORRESPONDENT ADDRESS: JOHN R. HLAVKA WATTS, HOFFMANN, FISHER & HEINKE CO. PO BOX 99839 CLEVELAND OH 44199-0839
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RETURN ADDRESS: Commissioner for Trademarks 2900 Crystal Drive Arlington, VA 22202-3514 ecom115@uspto.gov
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MARK: DURAPRO
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CORRESPONDENT’S REFERENCE/DOCKET NO: 16-247
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 76/460712
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. Section 1052(d). TMEP section 1105.01. The assigned examining attorney has reviewed the referenced application and determined the following.
The specimen(s) are unacceptable as evidence of actual trademark use because they appear with the descriptive word “underbody” on the specimens. The commercial impression of DURAPRO isn’t that they are a source indicator for faucets but for some kind of material composition or finish on the underbody of the faucet. The applicant must submit a specimen showing the mark as used in commerce. 37 C.F.R. Section 2.56. Examples of acceptable specimens are tags, labels, instruction manuals, containers or photographs that show the mark on the goods or packaging. The applicant must verify, with an affidavit or a declaration under 37 C.F.R. Section 2.20, that the substitute specimens were in use in commerce at least as early as the filing date of the application. Jim Dandy Co. v. Siler City Mills, Inc., 209 USPQ 764 (TTAB 1981); 37 C.F.R. Section 2.59(a); TMEP section 905.10.
The statement supporting use of the substitute specimens must read as follows:
The substitute specimens were in use in commerce at least as early as the filing date of the application.
The following is a properly worded declaration under 37 C.F.R. Section 2.20.
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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Current status and status date information is available, via push button telephone, for all federal trademark registration and application records maintained in the automated Trademark Reporting and Monitoring (TRAM) system. The information may be accessed by calling (703) 305‑8747 from 6:30 a.m. until midnight, Eastern Time, Monday through Friday, and entering a seven‑digit registration number or eight‑digit application number, followed by the "#" symbol, after the welcoming message and tone. Callers may request information for up to five registration number or application number records per call.
/Brett Tolpin/
Attorney-Advisor (Trademarks)
Law Office 115
Phone: (703) 308-9115 x292
Fax: (703) 872-9875
ecom115@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 INQUIRIES OR QUESTIONS ABOUT THIS OFFICE ACTION, PLEASE CONTACT THE ASSIGNED EXAMINING ATTORNEY.