| To: | Ming, Yao (bkuenzinger@bhsmck.com) |
| Subject: | TRADEMARK APPLICATION NO. 76518769 - YAO MING - N/A |
| Sent: | 6/3/04 3:01:50 PM |
| Sent As: | ECom112 |
| Attachments: |
UNITED STATES PATENT AND TRADEMARK OFFICE
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SERIAL NO: 76/518769
APPLICANT: Ming, Yao
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CORRESPONDENT ADDRESS: BILL J. KUENZINGER BROWN, HALL, SHORE & MCKINLEY, LLP 3031 WEST MARCH LANE, SUITE 230 WEST STOCKTON, CA 95219
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RETURN ADDRESS: Commissioner for Trademarks 2900 Crystal Drive Arlington, VA 22202-3514
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MARK: YAO MING
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CORRESPONDENT’S REFERENCE/DOCKET NO: N/A
CORRESPONDENT EMAIL ADDRESS: bkuenzinger@bhsmck.com |
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 76/518769
This letter responds to the applicant's communication filed on October 2, 2004.
In the original application, the applicant has specified 00/00/2000 as the date of first use of the mark anywhere. The Office interprets this as December 31, 2000. TMEP §903.07. However, that date is after December 1, 2000, set forth as the date of first use in commerce in the amendment of April 2, 2004. This is not possible because use in commerce by definition includes use anywhere. TMEP §903.04. Therefore, the applicant must amend the dates‑of‑use clause to specify a date of first use anywhere which is not later than the date of first use in commerce. The applicant must verify this amendment with an affidavit or a declaration under 37 C.F.R. §2.20. 37 C.F.R. §2.71(c); TMEP §903.05. If the applicant adopts the date of first use in commerce as the date of first use anywhere, the applicant need not verify the amendment.
The specimen is unacceptable as evidence of actual service mark use because it is merely advertising for a video game and does not show use of the mark in connection with the relevant services, i.e. entertainment in the nature of live competitions in the field of athletics; and entertainment services, namely personal appearances by a sports celebrity. The applicant must submit a specimen showing the mark as it is used in commerce. 37 C.F.R. §2.56. Examples of acceptable specimens are signs, photographs, brochures or advertisements that show the mark used in the sale or advertising of the services. TMEP §§1301.04 et seq. The applicant must verify, with an affidavit or a declaration under 37 C.F.R. §2.20, that the substitute specimen was in use in commerce at least as early as the filing date of the application. 37 C.F.R. §2.59(a); TMEP §904.09.
Scott Baldwin /sb/
Trademark Attorney
Law Office 112
703-308-9112 x124
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 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.