UNITED STATES PATENT AND TRADEMARK OFFICE
SERIAL NO: 76/532790
APPLICANT: Ty Inc.
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CORRESPONDENT ADDRESS: SCOTT E. ROGERS TY INC. 280 CHESTNUT WESTMONT, ILLINOIS 60559
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RETURN ADDRESS: Commissioner for Trademarks 2900 Crystal Drive Arlington, VA 22202-3514 ecom113@uspto.gov
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MARK: CURE
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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 76/532790
The assigned examining attorney has reviewed the referenced application and determined the following:
The examining attorney refuses registration under Trademark Act Section 2(d), 15 U.S.C. Section 1052(d), because the applicant's mark, when used on or in connection with the identified goods, so resembles the mark in U.S. Registration No. 2640915 as to be likely to cause confusion, to cause mistake, or to deceive. TMEP section 1207. See the enclosed registration.
The examining attorney must analyze each case in two steps to determine whether there is a likelihood of confusion. First, the examining attorney must look at the marks themselves for similarities in appearance, sound, connotation and commercial impression. In re E. I. DuPont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973). Second, the examining attorney must compare the goods or services to determine if they are related or if the activities surrounding their marketing are such that confusion as to origin is likely. In re August Storck KG, 218 USPQ 823 (TTAB 1983); In re International Telephone and Telegraph Corp., 197 USPQ 910 (TTAB 1978); Guardian Products Co., v. Scott Paper Co., 200 USPQ 738 (TTAB 1978).
The applicant has applied to register the mark CURE for “plush toys.”
The registered mark is D. CURE for “plush toys.”
The applicant’s goods are identical to the goods in the registration, namely, plush toys. Both can be found in the same channels of trade such that the average consumer would be likely to believe that the goods come from a common source.
The applicant’s and registrant’s marks create a similar commercial impression because they share the identical dominant term CURE. The only difference between the marks is the registrant’s use of the additional first initial “D.” However, this difference does not present a separate commercial impression nor obviate the overall similarity of the marks.
The marks are similar. The goods are identical. The similarities among the marks and the goods are so great as to create a likelihood of confusion among consumers. The examining attorney must resolve any doubt regarding a likelihood of confusion in favor of the prior registrant. In re Hyper Shoppes (Ohio), Inc., 837 F.2d 463, 6 USPQ2d 1025 (Fed. Cir. 1988). Accordingly, the mark is refused registration on the Principal Register under Section 2(d). 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.
Effective January 1, 2003, the fee for filing an application for trademark registration will be increased to $335.00 per International Class. The USPTO will not accord a filing date to applications that are filed on or after that date that are not accompanied by a minimum of $335.00. Additionally, the fee for amending an existing application to add an additional class or classes of goods/services will be $335.00 per class for classes added on or after January 1, 2003.
If the applicant has any questions or needs assistance in responding to this Office action, please telephone the assigned examining attorney.
/Michael Kazazian/
Trademark Examining Attorney
Law Office 113
(703) 308-9113 ext. 207
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.