UNITED STATES PATENT AND TRADEMARK OFFICE
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SERIAL NO: 76/498319
APPLICANT: Troika International, Inc.
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CORRESPONDENT ADDRESS: RICHARD L. MORRIS, JR., ESQ. C/O 1-800-4-TRADEMARK P.O. BOX 398538 MIAMI BEACH, FLORIDA 33239-8538
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RETURN ADDRESS: Commissioner for Trademarks 2900 Crystal Drive Arlington, VA 22202-3514 ecom113@uspto.gov
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MARK: RED CHERRY
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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 76/498319
The assigned examining attorney has reviewed the application and determined the following.
• Search of Office records.
The examining attorney has searched the Office records and has found no similar registered or pending mark which bars registration under Trademark Act §2(d), 15 U.S.C. §1052(d). TMEP §704.02.
However, the applicant must respond to the following.
1. Disclaimer.
The applicant must, as shown below, disclaim the descriptive wording “red” apart from the mark. Trademark Act § 6, 15 U.S.C. §1056; TMEP §§1213 and 1213.03(a). The wording is merely descriptive because it merely describes an ingredient, quality, characteristic, function, feature, purpose, or use of the applicant’s goods (“false eyelashes of various colors…”).
The computerized printing format for the Official Gazette requires a standard form for a disclaimer. TMEP §1213.08(a)(i). A properly worded disclaimer should read as follows:
No claim is made to the exclusive right to use “red” apart from the mark as shown.
See In re Owatonna Tool Co., 231 USPQ 493 (Comm’r Pats. 1983).
If the applicant fully complies with the foregoing, the applicant is entitled to ignore the following (which will be withdrawn upon entry of the required disclaimer).
2. Request for information.
In order to allow for proper examination of this application, including the final determination as to whether the mark is merely descriptive (or deceptively misdescriptive) in relation to the applicant’s goods or services, the applicant must submit samples of advertisements or promotional materials for the goods or services or, if unavailable, for goods or services of the same type. If such materials are not available, the applicant must describe the nature, purpose, and channels of trade of the goods or services identified in the application.
In addition, the applicant must answer the following question(s) for the record:
Are any of the applicant’s listed goods red?
Does the wording “red” have any significance in the applicant’s industry or as applied to the applicant’s goods?
See 37 C.F.R. §2.61(b). See also In re DTI Partnership, L.L.P., 2003 TTAB-LEXIS 171 (2003) (“Applicant’s failure to comply with the Trademark Rule 2.61(b) requirement is a sufficient basis, in itself, for affirming the refusal to register applicant’s mark”).
• Responding to this Office Action.
To respond formally using the Office’s online Trademark Electronic Application System (TEAS), the applicant should use the “Form Wizard” at http://eteas.gov.uspto.report/V2.0/oa200/WIZARD.htm.
To respond formally via regular mail, the applicant should mail, to the Return Address listed above, correspondence bearing the serial number, law office, and examining attorney’s name on the upper right corner of each page.
To check the status of an application at any time, the applicant is strongly encouraged to visit the Office’s online Trademark Applications and Registrations Retrieval (TARR) system at http://tarr.uspto.gov. For general and other useful information about trademarks, the applicant may visit the Office’s official Web site at http://www.gov.uspto.report/main/trademarks.htm. For inquiries or questions about this Office Action, the applicant should contact the assigned Examining Attorney.
Notice of Fee Increase: Effective January 1, 2003, the fee for filing an application for trademark registration will be increased $10.00 to $335.00 per International Class. The USPTO will not accord a filing date to applications 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 for classes added on or after January 1, 2003.
/J. Brendan Regan/
Examining Attorney, Law Office 113
(703) 308-9113x420 • brendan.regan@uspto.gov