Offc Action Outgoing

UNITED STATES PATENT AND TRADEMARK OFFICE

 

 

 

OFFICE ACTION

 

TO AVOID ABANDONMENT, WE MUST RECEIVE A PROPER RESPONSE TO THIS OFFICE ACTION WITHIN 6 MONTHS OF OUR MAILING OR E-MAILING DATE. 

 

 

Serial Number  76/505808

 

 

Search Results

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.

 

Section 2(e)(1) - Descriptive Refusal

The examining attorney refuses registration on the Principal Register because the proposed mark merely describes the goods/services.  Trademark Act Section 2(e)(1), 15 U.S.C. §1052(e)(1); TMEP §§1209 et seq.

 

A mark is merely descriptive under Trademark Act Section 2(e)(1), 15 U.S.C. §1052(e)(1), if it describes an ingredient, quality, characteristic, function, feature, purpose or use of the relevant goods/services.  In re Gyulay, 820 F.2d 1216, 3 USPQ2d 1009 (Fed. Cir. 1987);  In re Bed & Breakfast Registry, 791 F.2d 157, 229 USPQ 818 (Fed. Cir. 1986); In re MetPath Inc., 223 USPQ 88 (TTAB 1984); In re Bright‑Crest, Ltd., 204 USPQ 591 (TTAB 1979); TMEP §1209.01(b).

 

The applicant’s mark is DUO-FLOW.  The applicant’s goods are dialysis catheters and catheter kits.  The term DUO is defined as:

 

duo-

 
duo- prefix

Two: duopsony.

 [Latin, from duo, two.][1]

 

FLOW is defined as:

 

flow

 
flow (flo) verb

flowed, flow·ing, flows verb, intransitive

1.    a. To move or run smoothly with unbroken continuity, as in the manner characteristic of a fluid. b. To issue in a stream; pour forth: Sap flowed from the gash in the tree.

2.    To circulate, as the blood in the body.

3.    To move with a continual shifting of the component particles: wheat flowing into the bin; traffic flowing through the tunnel.

4.    To proceed steadily and easily: The preparations flowed smoothly.

5.    To exhibit a smooth or graceful continuity: The cadence of the poem flowed gracefully.

6.    To hang loosely and gracefully: The cape flowed from his shoulders.

7.    To rise. Used of the tide.

8.    To arise; derive: Several conclusions flow from this hypothesis.

9.    a. To abound or teem: coffers flowing with treasure. b. To stream copiously; flood: Contributions flowed in from all parts of the country.

10.  To menstruate.

11.  To undergo plastic deformation without cracking or breaking. Used of rocks, metals, or minerals.

 

verb, transitive

1.    To release as a flow: trees flowing thin sap.

2.    To cause to flow: “One of the real keys to success is developing a system where you can flow traffic to yourselves” (Marc Klee).

 

noun

1.    a. The act of flowing. b. The smooth motion characteristic of fluids.

2.    a. A stream or current. b. A flood or an overflow. c. A residual mass that has stopped flowing: a hardened lava flow.

3.    a. A continuous output or outpouring: a flow of ideas; produced a steady flow of articles and stories. b. A continuous movement or circulation: the flow of traffic; a flow of paperwork across his desk.

4.    The amount that flows in a given period of time.

5.    The rising of the tide.

6.    Continuity and smoothness of appearance.

7.    A general movement or tendency: As the lone dissenter in the group, she was going against the flow of opinion.

8.    The sequence in which operations are performed.

9.    An apparent ease or effortlessness of performance: “An athlete must learn to forget the details of his or her training to achieve the instinctive sense of flow that characterizes a champion” (Frederick Turner).

10.  Menstrual discharge.

 [Middle English flouen, from Old English flowan.]

— flow¹ing·ly adverb

 Synonyms: flow, current, flood, flux, rush, stream, tide. The central meaning shared by these nouns is “something suggestive of running water”: a flow of thought; the current of history; a flood of ideas; a flux of words; a rush of sympathy; a stream of complaints; a tide of immigration. See also synonyms at stem1.[2]

 

 

Hemodialysis is defined as:

 

he·mo·di·al·y·sis

 
he·mo·di·al·y·sis (hê´mo-dì-àl¹î-sîs) noun

plural he·mo·di·al·y·ses (-sêz´)

A procedure for removing metabolic waste products or toxic substances from the bloodstream by dialysis.[3]

 

 

The mark DUO-FLOW is merely descriptive of the applicant’s catheters, because the catheters are used for dialysis to circulate blood through the body and allow for two flows at one time.  Please see the attached information about the applicant’s product  from the applicant’s web site, wherein the catheters are describes as dual lumen (two opening) catheters, as well as other descriptive evidence obtained from a search of the Internet.  DUO-FLOW immediately describes the purpose or function of the goods.  Therefore, registration is refused under Section 2(e)(1).

 

Although the examining attorney has refused registration, the applicant may respond to the refusal to register by submitting evidence and arguments in support of registration.

 

If the applicant chooses to respond to the refusal to register, the applicant must also respond to the following informality.

 

Identification of Goods

The identification of goods is unacceptable as indefinite because “catheter kits” is indefinite.  The applicant must amend this wording to specify the components of the kits.  The applicant may adopt the following identification, if accurate:  dialysis catheters and catheter kits containing [specify, e.g., catheters, scalpels, guidewires, adhesive dressings, dilators, needles and bulbs]. TMEP §1402.01.

 

Please note that, while an application may be amended to clarify or limit the identification, additions to the identification are not permitted.  37 C.F.R. §2.71(a); TMEP §1402.06.  Therefore, the applicant may not amend to include any goods that are not within the scope of goods set forth in the present identification.

 

 

 

 

 

 

 

/Patty Evanko/

Examining Attorney-Law Office 112

ecom112@uspto.gov (formal response)

patty.evanko@uspto.gov (questions only)

703-308-9112, ext. 163

 

 

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.

 

To check the status of your application at any time, visit the Office’s Trademark Applications and Registrations Retrieval (TARR) system at http://tarr.gov.uspto.report/

 

For general and other useful information about trademarks, you are encouraged to visit the Office’s web site at http://www.gov.uspto.report/main/trademarks.htm

 

FOR INQUIRIES OR QUESTIONS ABOUT THIS OFFICE ACTION, PLEASE CONTACT THE ASSIGNED EXAMINING ATTORNEY.