UNITED STATES PATENT AND TRADEMARK OFFICE
SERIAL NO: 76/507374
APPLICANT: DYMATIZE ENTERPRISES, INC.
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CORRESPONDENT ADDRESS: DAVID W. CARSTENS CARSTENS YEE & CAHOON, L.L.P. P.O. BOX 802334 DALLAS, TEXAS 75380
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RETURN ADDRESS: Commissioner for Trademarks 2900 Crystal Drive Arlington, VA 22202-3514 ecom106@uspto.gov
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MARK: ELITE WHEY PROTEIN
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CORRESPONDENT’S REFERENCE/DOCKET NO: ADYMA.0129
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 76/507374
The assigned examining attorney has reviewed the referenced application and determined the following.
The applicant must disclaim the descriptive wording “Whey Protein” apart from the mark as shown. Trademark Act Section 6, 15 U.S.C. §1056; TMEP §§1213 and 1213.03(a). The wording is merely descriptive because it would appear the goods are intended to comprise whey and be a source of protein to the user of applicant’s goods.
The computerized printing format for the Trademark 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 Whey Protein, apart from the mark as shown.
See In re Owatonna Tool Co., 231 USPQ 493 (Comm’r Pats. 1983).
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.
The following authorities govern the processing of trademark and service mark applications: The Trademark Act, 15 U.S.C. §§1051 et seq., the Trademark Rules of Practice, 37 C.F.R. Part 2, and the Trademark Manual of Examining Procedure (TMEP).
PLEASE NOTE: All of the issues raised can be resolved by telephone. The applicant may telephone the examining attorney, instead of submitting a written response, to expedite the application.
/Edward Nelson/
Examining Attorney
Law Office 106
(703) 308-9106 ext.197
(703)746-8106 (fax no.)
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.