UNITED STATES PATENT AND TRADEMARK OFFICE
SERIAL NO: 76/602747
APPLICANT: COCHLEAR LIMITED
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CORRESPONDENT ADDRESS: |
RETURN ADDRESS: Commissioner for Trademarks P.O. Box 1451 Alexandria, VA 22313-1451
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MARK: CONTOUR ADVANCE
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CORRESPONDENT’S REFERENCE/DOCKET NO: COCH-0079-T1
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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MAILING/E-MAILING DATE INFORMATION: If the mailing or e-mailing date of this Office action does not appear above, this information can be obtained by visiting the USPTO website at http://tarr.gov.uspto.report/, inserting the application serial number, and viewing the prosecution history for the mailing date of the most recently issued Office communication.
Serial Number 76/602747
THIS IS A FINAL ACTION
This Office Action responds to the applicant’s letter dated November 16, 2006.
The examining attorney found the originally submitted specimen because it was only a product update and failed to show use of the goods.
The applicant’s substitute specimen is also unacceptable as evidence of actual trademark use. This time, the submitted specimen is unacceptable because it only shows the mark as it is intended to be used in on packaging. The substitute specimen is simply a printer’s proof of packaging and not the actual packaging itself. It therefore does not actually show the mark used in connection with the goods in commerce. In re Bright of America, Inc., 205 USPQ 63 (TTAB 1979); Trademark Manual of Examining Procedure Section 904.05 and 904.07. See In re Ultraflight Inc., 221 USPQ 903 (TTAB 1984).
Applicant must submit (1) a substitute specimen showing the mark as it is used in commerce on the goods or on packaging for the goods, and (2) a statement that “the substitute specimen was in use in commerce prior to the expiration of the time allowed applicant for filing a statement of use,” verified with a notarized affidavit or a signed declaration under 37 C.F.R. §2.20. 37 C.F.R. §§2.56, 2.59(b)(2) and 2.88(b)(2); TMEP §§904.09 and 1109.09(b).
These requirements are maintained and made FINAL.
Examples of acceptable specimens for goods are tags, labels, instruction manuals, containers, photographs that show the mark on the goods or packaging, or displays associated with the goods at their point of sale. TMEP §§904.04 et seq.
If an amendment of the dates‑of‑use clause is necessary in order to state the correct dates of first use, the applicant must verify the amendment with an affidavit or a declaration in accordance with 37 C.F.R. Section 2.20. 37 C.F.R. Section 2.71(c); Trademark Manual of Examining Procedure Section 903.05.
Please note that the only appropriate responses to a final action are either (1) compliance with the outstanding requirements, if feasible, or (2) filing of an appeal to the Trademark Trial and Appeal Board. 37 C.F.R. Section 2.64(a). If the applicant fails to respond within six months of the mailing date of this refusal, this Office will declare the application abandoned. 37 C.F.R. Section 2.65(a). In certain circumstances, a petition to the Director may be filed to review a final action that is limited to procedural issues, pursuant to 37 C.F.R. §2.63(b)(2). 37 C.F.R. §2.64(a). See 37 C.F.R. §2.146(b), TMEP §1704, and TBMP Chapter 1201.05 for an explanation of petitionable matter. The petition fee is $100. 37 C.F.R. §2.6(a)(15).
No set form is required for response to this Office action. The applicant must respond to each point raised. The applicant should simply set forth the required changes or statements and request that the Office enter them. The applicant must sign the response. In addition to the identifying information required at the beginning of this letter, the applicant should provide a telephone number to speed up further processing.
In all correspondence to the Patent and Trademark Office, the applicant should list the name and law office of the examining attorney, the serial number of this application, the mailing date of this Office action, and the applicant's telephone number.
If the applicant has any questions or needs assistance in responding to this Office Action, please telephone the assigned examining attorney. However, you may be able to can receive a response faster by sending me an email at john.dalier@uspto.gov with any questions regarding this Office Action. Note that this email address is not for responses to Office Actions, just questions about Office Actions.
Copies of Documents
The applicant may view and download any or all documents contained in the electronic file wrapper of all pending trademark applications, as well as many registrations via the Trademark Document Retrieval (TDR) system available online at: <http://portal.gov.uspto.report/external/portal/tow>. Currently, you can access all pending applications and all Madrid Protocol filings, and also many registrations, via TDR. The USPTO is in the process of converting all remaining registrations into a digital format, to permit future TDR access. This conversion process is expected to take several years.
Downloads are converted into PDF format and may be viewed with any PDF viewer, including the free Adobe Reader.
/John D. Dalier/
Trademark Examining Attorney
Law Office 106; 571 272 9150
Fax (571) 273-9106
HOW TO RESPOND TO THIS OFFICE ACTION:
STATUS OF APPLICATION: To check the status of your application, visit the Office’s Trademark Applications and Registrations Retrieval (TARR) system at http://tarr.uspto.gov.
VIEW APPLICATION DOCUMENTS ONLINE: Documents in the electronic file for pending applications can be viewed and downloaded online at http://portal.gov.uspto.report/external/portal/tow.
GENERAL TRADEMARK INFORMATION: For general information about trademarks, please visit the Office’s website at http://www.gov.uspto.report/main/trademarks.htm
FOR INQUIRIES OR QUESTIONS ABOUT THIS OFFICE ACTION, PLEASE CONTACT THE ASSIGNED EXAMINING ATTORNEY SPECIFIED ABOVE.