UNITED STATES PATENT AND TRADEMARK OFFICE
SERIAL NO: 76/521561
APPLICANT: Bavaria Corporation International
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CORRESPONDENT ADDRESS: D. MACK WILLIAMS BAVARIA CORPORATION INTERNATIONAL 1020 OCOEE-APOPKA ROAD APOPKA, FLORIDA 32703
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RETURN ADDRESS: Commissioner for Trademarks 2900 Crystal Drive Arlington, VA 22202-3514 ecom103@uspto.gov
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MARK: PROTECTA
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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 76/521561
This letter responds to the applicant’s communication filed on December 15, 2003 in which the applicant amended the identification of goods, addressed the significance of wording in the mark, stated the date of signing for the declaration, and submitted a specimen of use.
The statement of mark significance and date of declaration signing are acceptable, and have been entered in the record. However, the specimen of use is unacceptable, and the identification of goods remains unacceptable.
The citation of prior pending Application Serial No. 78025084 for potential likelihood of confusion is withdrawn.
The specimen is unacceptable as evidence of actual trademark use because the nature of the specimen is unclear. (It is unclear whether the submitted specimen is a label or a bill of sale or some other paper.) The applicant must submit a specimen showing the mark as used in commerce. 37 C.F.R. §2.56. Examples of acceptable specimens are tags, labels, instruction manuals, containers or photographs that show the mark on the goods or packaging. TMEP §904.04 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. Jim Dandy Co. v. Siler City Mills, Inc., 209 USPQ 764 (TTAB 1981); 37 C.F.R. §2.59(a); TMEP §904.09.
The following is a properly worded supporting statement and declaration under 37 C.F.R. §2.20. At the end of the response, the applicant should insert the declaration signed by a person authorized to sign under 37 C.F.R. §2.33(a).
The substitute specimen was in use in commerce at least as early as the filing date of the application
The undersigned, being hereby warned that willful false statements and the like so made are punishable by fine or imprisonment, or both, under 18 U.S.C. §1001, and that such willful false statements may jeopardize the validity of the application or any resulting registration, declares that the facts set forth in this application are true; all statements made of his/her own knowledge are true; and all statements made on information and belief are believed to be true.
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(Signature)
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(Print or Type Name and Position)
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(Date)
THIS REQUIREMENT APPLIES ONLY TO THE GOODS SPECIFIED THEREIN
In the November 19, 2003 Office Action, the examining attorney noted that the identification of goods was unacceptable as indefinite and suggested the following identification and classification:
“Antibacterial food wash, namely, an anti-microbial powder used in or on meat, poultry, seafood and vegetables for the purpose of killing and inhibiting listeria, salmonella, e-coli and other bacteria” in International Class 005.
In its response, the applicant proposed the following amendment:
“Antibacterial food wash and/or inject, namely, an anti-microbial powder used in or on meat, poultry, seafood and vegetables for the purpose of killing and inhibiting Listeria, Salmonella, E-coli and other bacteria” in International Class 005.
The wording “and/or inject” in the identification of goods is unacceptable as indefinite because it is not sufficiently clear for proper classification. The applicant may amend the identification and classification to the following, if accurate:
“Antibacterial food surface wash and/or injectable wash, namely, an anti-microbial powder used in or on meat, poultry, seafood and vegetables for the purpose of killing and inhibiting Listeria, Salmonella, E-coli and other bacteria” in International Class 005.
TMEP §1402.01.
For assistance regarding an acceptable listing of goods and/or services, please see the on‑line searchable Manual of Acceptable Identifications of Goods and Services, at http://www.gov.uspto.report/web/offices/tac/doc/gsmanual/.
The applicant is reminded that an application may be amended to clarify or limit the identification, but 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.
/Nelson B. Snyder III/
Trademark Attorney
Law Office 103
(703) 308-9103 ext. 147
(703) 746-8103 (fax)
ecom103@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.