UNITED STATES PATENT AND TRADEMARK OFFICE
SERIAL NO: 76/533763
APPLICANT: Life Services Supplements, Inc.
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CORRESPONDENT ADDRESS: DANIEL A. MAIULLO, JR. 3535 ROUTE 66 NEPTUNE, NEW JERSEY 07753
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RETURN ADDRESS: Commissioner for Trademarks 2900 Crystal Drive Arlington, VA 22202-3514 ecom111@uspto.gov
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MARK: KETO ELF
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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 76/533763
The assigned examining attorney has reviewed the referenced application and determined the following.
Section 2(d) - Likelihood of Confusion Refusal
The examining attorney refuses registration under Trademark Act Section 2(d), 15 U.S.C. §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. 1,124,989 as to be likely to cause confusion, to cause mistake, or to deceive. Both the marks include the word “elf” for cookies. TMEP §§1207.01 et seq. See the enclosed registration.
Section 2(d) of the Trademark Act bars registration where a mark so resembles a registered mark, that it is likely, when applied to the goods, to cause confusion, or to cause mistake or to deceive. TMEP §1207.01. The Court in In re E. I. DuPont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (C.C.P.A. 1973), listed the principal factors to consider in determining whether there is a likelihood of confusion. Among these factors are the similarity of the marks as to appearance, sound, meaning and commercial impression and the similarity of the goods. The overriding concern is to prevent buyer confusion as to the source of the goods. Miss Universe, Inc. v. Miss Teen U.S.A., Inc., 209 USPQ 698 (N.D. Ga. 1980). Therefore, any doubt as to the existence of a likelihood of confusion must be resolved in favor of the registrant. Lone Star Mfg. Co. v. Bill Beasley, Inc., 498 F.2d 906, 182 USPQ 368 (C.C.P.A. 1974).
If the applicant chooses to respond to the refusal to register, the applicant must also respond to the following infomalities.
Identification of Goods
The description of goods should be amended as follows to comply with the Office’s on-line classification manual: protein based, nutrient dense, low carbohydrate snack bars in Class 29; high protein, low carbohydrate cooky mixes, pancake mixes, powdered shakes and liquid shakes in Class 30; fruit flavored drink mixes in Class 32.
Please note that, while an application may be amended to clarify or limit the identification, 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.
Disclaimer:
The applicant must disclaim the descriptive wording “keto” 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, as shown by the attached evidence, it refers to “ketone”. Apparently, applicant’s goods seek to affect ketone production in the body. The disclaimer of “elf” should be deleted, if it does not describe a feature of the 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 “keto” apart from the mark as shown.
See In re Owatonna Tool Co., 231 USPQ 493 (Comm’r Pats. 1983).
Fee Increase
Fee increase effective January 1, 2003
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.
/Hannah Fisher/
Trademark Examining Attorney
Law Office 111
(703) 308-9110 x 171 or (301) 610-5388
ecom111@uspto.gov
Fax: (703) 746-8111
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.