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  76/521561

 

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.

 

Potential Likelihood of Confusion – Citation Withdrawn

The citation of prior pending Application Serial No. 78025084 for potential likelihood of confusion is withdrawn.

 

Specimen of Use

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.

 

 

_____________________________

(Signature)

 

_____________________________

(Print or Type Name and Position)

 

_____________________________

(Date)

 

Identification of Goods – Requirement Continued

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.

 

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.