UNITED STATES PATENT AND TRADEMARK OFFICE
SERIAL NO: 76/484254
APPLICANT: Nisshin Seifun Group Inc.
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CORRESPONDENT ADDRESS: GRACE L PAN FROMMER LAWRENCE & HAUG LLP 745 5TH AVE NEW YORK NY 10151-0099
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RETURN ADDRESS: Commissioner for Trademarks 2900 Crystal Drive Arlington, VA 22202-3514 ecom111@uspto.gov
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MARK: NISSHIN MILENA
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CORRESPONDENT’S REFERENCE/DOCKET NO: 790024-8003
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 76/484254
This letter responds to the applicant’s communication filed on December 2, 2003.
Registration was refused because (1) the applicant failed to provide the Office with the significance of the term “NISSHIN MILENA;” (2) the applicant failed to indicate the date the application declaration was signed; (3) the applicant failed to claim ownership of prior related registrations; (4) the applicant failed to provide the Office with an acceptable identification of goods and (5) the applicant failed to properly identify and classify “whey-based drinks.”
The examining attorney has carefully considered the applicant’s response and has determined the following. The applicant has satisfactorily responded to numbers (1), (2), (3) and (4) above. However, the refusal to register is hereby made FINAL because the applicant has not satisfied refusal (5). Namely, the applicant still has “whey-based beverages” improperly classified in International Class 32. As stated in the first Office action, these goods are properly classified in International Class 29.
Accordingly, the applicant must amend the application to classify the “whey-based beverages” in International Class 29. 37 C.F.R. §§2.32(a)(7) and 2.85; TMEP §§1401.02(a) and 1401.03(b).
The decision as to the proper classification of goods or services is a purely administrative matter which is within the sole discretion of the United States Patent and Trademark Office. In re Tee‑Pak, Inc., 164 USPQ 88 (TTAB 1969).
Please note that the only appropriate responses to a final action are (1) compliance with the outstanding requirements, if feasible, (2) filing of an appeal to the Trademark Trial and Appeal Board, or (3) filing of a petition to the Director if permitted by 37 C.F.R. §2.63(b). 37 C.F.R. §2.64(a); TMEP §715.01. Regarding petitions to the Director, see 37 C.F.R. §2.146 and TMEP Chapter 1700. If the applicant fails to respond within six months of the mailing date of this refusal, this Office will declare the application abandoned. 37 C.F.R. §2.65(a).
/GFosdick/
Geoffrey Fosdick
Trademark Attorney
Law Office 111
(540) 851-0865
ecom111@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.