UNITED STATES PATENT AND TRADEMARK OFFICE
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SERIAL NO: 76/569949
APPLICANT: Sovanny's Selections, Inc.
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CORRESPONDENT ADDRESS: |
RETURN ADDRESS: Commissioner for Trademarks 2900 Crystal Drive Arlington, VA 22202-3514
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MARK: THE ULTIMATE ANTI-AGING PROGRAM
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CORRESPONDENT’S REFERENCE/DOCKET NO: N/A
CORRESPONDENT EMAIL ADDRESS: |
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 76/569949
The assigned examining attorney has reviewed the referenced application and determined the following.
The examining attorney refuses registration on the Principal Register because the proposed mark merely describes the services. Trademark Act Section 2(e)(1), 15 U.S.C. §1052(e)(1); TMEP §§1209 et seq.
A mark is merely descriptive under Trademark Act Section 2(e)(1), 15 U.S.C. §1052(e)(1), if it describes an ingredient, quality, characteristic, function, feature, purpose or use of the relevant services. In re Gyulay, 820 F.2d 1216, 3 USPQ2d 1009 (Fed. Cir. 1987); In re Bed & Breakfast Registry, 791 F.2d 157, 229 USPQ 818 (Fed. Cir. 1986); In re MetPath Inc., 223 USPQ 88 (TTAB 1984); In re Bright‑Crest, Ltd., 204 USPQ 591 (TTAB 1979); TMEP §1209.01(b).
The examining attorney must consider whether a mark is merely descriptive in relation to the identified services, not in the abstract. In re Omaha National Corp., 819 F.2d 1117, 2 USPQ2d 1859 (Fed. Cir. 1987); In re Abcor Development Corp., 588 F.2d 811, 200 USPQ 215 (C.C.P.A. 1978); In re Venture Lending Associates, 226 USPQ 285 (TTAB 1985); In re American Greetings Corp., 226 USPQ 365 (TTAB 1985). TMEP §1209.01(b).
It is not necessary that a term describe all of the purposes, functions, characteristics or features of the services to be merely descriptive. It is enough if the term describes one attribute of the services. In re H.U.D.D.L.E., 216 USPQ 358 (TTAB 1982); In re MBAssociates, 180 USPQ 338 (TTAB 1973). TMEP §1209.01(b).
Laudatory terms, those which attribute quality or excellence to goods or services, are equivalent to other descriptive terms under Trademark Act Section 2(e)(1), 15 U.S.C. §1052(e)(1); TMEP §1209.03(k). That is, laudatory terms are nondistinctive and unregistrable without proof of acquired distinctiveness. In re Nett Designs Inc., 236 F.3d 1339, 57 USPQ2d 1564 (Fed. Cir. 2001) (THE ULTIMATE BIKE RACK); In re Best Software Inc., 58 USPQ2d 1314 (TTAB 2001) (BEST and PREMIER); In re Dos Padres Inc., 49 USPQ2d 1860 (TTAB 1998) (QUESO QUESADILLA SUPREME); In re Consolidated Cigar Co., 35 USPQ2d 1290 (TTAB 1995) (SUPER BUY); General Foods Corp. v. Ralston Purina Co., 220 USPQ 990 (TTAB 1984) (ORIGINAL BLEND); In re Wileswood, Inc., 201 USPQ 400 (TTAB 1978) (AMERICA’S FAVORITE POPCORN).
An “anti-aging program” is a system of products and activities to assist an individual in resisting the effects of aging. (See material from the Lexis/Nexis Research Database). “Ultimate” means the best. See http://www.m-w.com. The “ultimate anti-aging program” refers to the best anti-aging program. Applicant intends to use its mark in connection with the sale of items associated with the ultimate anti-aging program. Therefore, the term describes a significant attribute of the services.
The examining attorney refers to the excerpted articles from the examining attorney’s search in a computerized data base in which ANTI AGING PROGRAM appeared in 256 stories. See attachments. Enclosed is a representative sampling of stories.
The Trademark Trial and Appeal Board has held that materials obtained through computerized text searching are competent evidence to show the descriptive use of terms under Trademark Act Section 2(e)(1), 15 U.S.C. §1052(e)(1). In re National Data Corp., 222 USPQ 515, 517 n.3 (TTAB 1984).
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.
If the applicant chooses to respond to the refusal to register, the applicant must also respond to the following informalities.
The recitation of services is unacceptable as indefinite. The applicant may adopt the following recitation, if accurate: “Multi-level marketing business services; online retail store services, wholesale store services, and distributorship services featuring skin care products, beauty products, cosmetics, cosmaceuticals, personal care products, nutritional and dietary supplements, vitamins and herbs, nutraceuticals, exercise equipment, blood pressure cuffs, clothing, educational books, pamphlets and brochures, educational compact disks and audio tapes,” in Class 35. TMEP §1402.11.
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 services that are not within the scope of the services recited in the present identification.
Applicant must submit the following standard character claim: “The mark is presented in standard characters without claim to any particular font style, size, or color.” 37 C.F.R. §2.52(a).
The examining attorney has searched the Office records and has found no similar registered or pending mark which would bar registration under Trademark Act Section 2(d), 15 U.S.C. §1052(d). TMEP §704.02.
NOTICE: TRADEMARK OPERATION RELOCATING OCTOBER AND NOVEMBER 2004
The Trademark Operation is relocating to Alexandria, Virginia, in October and November 2004. Effective October 4, 2004, all Trademark-related paper mail (except documents sent to the Assignment Services Division for recordation, certain documents filed under the Madrid Protocol, and requests for copies of trademark documents) must be sent to:
Commissioner for Trademarks
P.O. Box 1451
Alexandria, VA 22313-1451
Applicants, registration owners, attorneys and other Trademark customers are strongly encouraged to correspond with the USPTO online via the Trademark Electronic Application System (TEAS), at www.uspto.gov.
To reach the undersigned attorney by telephone after October 19, 2004, please call (571) 272 - 9235. Thank you.
/Kathleen M. Vanston/
Examining Attorney
Law Office 103
(703) 308-9103 ex 188
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.
FOR INQUIRIES OR QUESTIONS ABOUT THIS OFFICE ACTION, PLEASE CONTACT THE ASSIGNED EXAMINING ATTORNEY.
MAIL-IT REQUESTED: AUGUST 5, 2004 10083K
CLIENT:
LIBRARY: NEWS
FILE: ALLNWS
YOUR SEARCH REQUEST AT THE TIME THIS MAIL-IT WAS REQUESTED:
ANTI AGING PROGRAM
NUMBER OF STORIES FOUND WITH YOUR REQUEST THROUGH:
LEVEL 1... 256
LEVEL 1 PRINTED
THE SELECTED STORY NUMBERS:
1,2,3,5,6,8,9,10,18
DISPLAY FORMAT: KWIC
SEND TO: VANSTON, KATHY
TRADEMARK LAW LIBRARY
2101 CRYSTAL PLAZA ARC
MAILBOX 314
ARLINGTON VIRGINIA 22202-4600
**********************************01189**********************************
Copyright 2004 Gale Group, Inc.
ASAP
Copyright 2004 PRIMEDIA Intertec, a PRIMEDIA Company. All Rights Reserved.
Better Nutrition
August 1, 2004
SECTION: No. 8, Vol. 66; Pg. 4; ISSN: 0405-668X
IAC-ACC-NO: 119268085
LENGTH: 1261 words
HEADLINE: What everybody ought to know--about successfully losing weight ... How this simple and often overlooked principle can help those who struggle with their weight--become thin!Special Ad Report; Advertisement
BODY:
... another.
'The First Step' to a Leaner, Better Body ...
The first step in any weight loss, body shaping or anti-aging program should be cleansing. Colon cleansing is one of the most important steps--and usually the most overlooked--when attempting to lose weight, shape the body, ...
Copyright 2004 PR Newswire Association, Inc.
PR Newswire
July 29, 2004, Thursday
SECTION: FINANCIAL NEWS
DISTRIBUTION: TO BUSINESS, HEALTH AND RETAILING EDITORS
LENGTH: 867 words
HEADLINE: Patented Combination of Inositol & Cal-Mag IP6 Contained in Baywood's New CellXcite(TM)
DATELINE: SCOTTSDALE, Ariz., July 29
BODY:
... referred to as the "aspirin" of natural medicine due to its wide range of applications. Inositol & Cal-Mag IP6 is used in several anti-aging programs as anti-aging protocols usually incorporate antioxidants for cellular protection. This vitamin-like supplement is generally considered to be safe, as ...
Copyright 2004 The Arizona Republic
All Rights Reserved
The Arizona Republic
June 11, 2004 Friday Final Edition
SECTION: SUN CITIES/SURPRISE COMMUNITY; ASK THE EXPERTS; Pg. 4
LENGTH: 592 words
HEADLINE: BIOIDENTICAL HORMONE REPLACEMENT WORTH LOOK; THERAPY PROVED EFFECTIVE IN FIGHT AGAINST AGING
BYLINE: By Alan L. Miles, Special for The Republic
BODY:
... declines are responsible for a substantial portion of the symptoms of aging. This is why hormone modulation is an integral part of a comprehensive anti-aging program that also includes nutritional supplementation, diet and exercise.
Hormone deficiency results in symptoms of PMS, breast tenderness, bloating, headaches, ...
... seen evidence of this in my own practice when hormone modulation is combined with other equally important components of a comprehensive anti-aging program.
/
Alan L. Miles, M.D., is on the medical staffs of Sun Health Boswell and Del E. Webb Memorial hospitals
Copyright 2004 The Commercial Appeal, Inc.
The Commercial Appeal (Memphis, TN)
June 5, 2004 Saturday Final Edition
SECTION: BUSINESS; Pg. C1
LENGTH: 587 words
HEADLINE: ONE-STOP SPA - THE DOCTOR IS IN AT MEDI-SPA - COMBINATION OF SERVICES CONVENIENT FOR PATIENTS
BYLINE: David Flaum flaum£commercialappeal.com
BODY:
... one place."
The Ferrells hope that type of response will allow the spa business to grow, possibly adding nutrition counseling and anti-aging programs.
MEDI-SPA OF MEMPHIS
Head person: Dr. Thad Ferrell and Julie Ferrell, owners
Address: 7730 Wolf River ...
Copyright 2004 The Arizona Republic
All Rights Reserved
The Arizona Republic
May 13, 2004 Thursday Final chaser Edition
Correction Appended
SECTION: ARIZONA LIVING; Pg. 1E
LENGTH: 1909 words
HEADLINE: YOUTH IN A BOTTLE; BOMMERS SEEK REJUVENATION IN ANTI-AGING TREATMENTS
BYLINE: By Scott Craven, The Arizona Republic
BODY:
... level. Antioxidants neutralize free radicals, unstable oxygen atoms that can damage proteins, membrane and DNA. Those on an anti-aging program may take three to four times the recommended daily amounts of vitamins C and E, as well as beta carotene (found ...
CORRECTION:
Published correction ran 5/14/04: A story on Page E1 on Thursday should have said that Ed and Charlene Underburg have spent $36,000 on medical expenses including anti-aging therapies, not just on those therapies alone.
Copyright 2004 Gale Group, Inc.
ASAP
Copyright 2004 Advanstar Communications, Inc.
Cosmetic Surgery Times
May 1, 2004
SECTION: No. 4, Vol. 7; Pg. 24; ISSN: 1094-6810
IAC-ACC-NO: 116409317
LENGTH: 764 words
HEADLINE: Growth hormones promise slower, more graceful aging; Anti-Aging
BYLINE: Hannapel, Coriene E.
BODY:
... human growth hormone (HGH), Julio L. Garcia, M.D., contends that it can be used successfully as part of an anti-aging program --but only for selected patients and only by physicians who are fully trained in its use.
"The use of human ...
... Ageless Forever, an anti-aging and longevity treatment center.
Dr. Garcia has incorporated growth hormone into a comprehensive anti-aging program, which includes balancing critical hormones combined with a program of diet, exercise, and supplements.
HGH, a pituitary hormone, was discovered ...
Copyright 2004 Gale Group, Inc.
ASAP
Copyright 2004 Advanstar Communications, Inc.
Dermatology Times
April 1, 2004
SECTION: No. 4, Vol. 25; Pg. 72 ; ISSN: 0196-6197
IAC-ACC-NO: 116341114
LENGTH: 1208 words
HEADLINE: Adding age management services to the cosmetic practice; Cosmetic Dermatology
BYLINE: Hilton, Lisette
BODY:
... Mintz said.
He said a few elements are crucial to such a program's success: One is to refrain from calling it an " anti-aging" program. "We do not like the term 'anti-aging.' It is a negative term. There is so much hype and fraud...[with claims such as:] 'Wave the ...
Copyright 2004 Gale Group, Inc.
ASAP
Copyright 2004 PRIMEDIA Intertec, a PRIMEDIA Company. All Rights Reserved.
Better Nutrition
February 1, 2004
SECTION: No. 2, Vol. 66; Pg. 12; ISSN: 0405-668X
IAC-ACC-NO: 112354836
LENGTH: 1520 words
HEADLINE: What everybody ought to know--about successfully losing weight ... how this simple and often overlooked principle can help those who struggle with their weight--become thin!Special Advertising Section
BODY:
'The First Step' to a Leaner, Better Body ...
The first step in any weight loss, body shaping or anti-aging program should be cleansing. Colon cleansing is one of the most important steps--and usually the most overlooked--when attempting to lose weight, shape the body, ...
Copyright 2003 The News-Star (Monroe, LA)
All Rights Reserved
The News-Star (Monroe, LA)
December 7, 2003 Sunday
SECTION: LOCAL REGION; Pg. 3A
LENGTH: 675 words
HEADLINE: Secrets to longer lives can be found under the sea
BYLINE: Bob Teague, Staff
BODY:
... hundred years? How about for as long as you can keep the Japanese away from your reproductive organs?
Well, an anti-aging program like the one you are going to hear about right now could cost you hundreds or thousands of dollars. Some people have offered us their ...