UNITED STATES PATENT AND TRADEMARK OFFICE
SERIAL NO: 76/602783
APPLICANT: Dream Dinners, Inc.
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CORRESPONDENT ADDRESS: |
RETURN ADDRESS: Commissioner for Trademarks P.O. Box 1451 Alexandria, VA 22313-1451
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MARK: QUICK 6 DINNER FIX
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CORRESPONDENT’S REFERENCE/DOCKET NO: 016279.03515
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 76/602783
This letter responds to the applicant’s communication filed on August 19, 2005.
A service mark specimen must show use of the mark “in the sale or advertising of services.” Trademark Act Section 45, 15 U.S.C. §1127; 37 C.F.R. §2.56. Therefore, a specimen is unacceptable if it does not show use of the service mark in relation to the identified services. There must be a direct association between the mark sought to be registered and the services specified in the application, with sufficient reference to the services in the specimen to create this association. In re Monograms America, Inc., 51 USPQ2d 1317 (TTAB 1999); In re Adair, 45 USPQ2d 1211 (TTAB 1997); In re Restonic Corp., 189 USPQ 248 (TTAB 1975); TMEP §§1301.04 et seq.
Accordingly, the substitute specimen is unacceptable as evidence of actual service mark use because it does not show a sufficient reference to the applicant’s identified services (i.e., food delivery to the general public) and the applicant’s mark to create this association. First, the applicant’s original specimen consisted of a newsletter, which, did not reference the applicant’s identified services. Second, the applicant’s substitute specimen simply consists of a post card, which also does not reference the applicant’s identified services. The applicant should note, that food delivery services are classified in International Class 39. International Class 39 consists of transportation-type services. Therefore, an acceptable specimen would consist of advertising material, which shows that the applicant transports food to its customers. Clearly, the applicant’s specimens of record do not identify food delivery services. Thus, the current specimens of record are not acceptable for the applicant’s International Class 39 services. Applicant must submit a specimen showing the mark as it is used in commerce. 37 C.F.R. §2.56. Examples of acceptable specimens are signs, photographs, brochures or advertisements that show the mark used in the sale or advertising of the services. TMEP §§1301.04 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. 37 C.F.R. §2.59(a); TMEP §904.09.
The statement supporting use of the substitute specimen must read as follows:
The substitute specimen was in use in commerce at least as early as the filing date of the application.
The applicant must sign this statement either in affidavit form or with a declaration under 37 C.F.R. §2.20; TMEP §904.09.
The following is a properly worded 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 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.
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(Signature)
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(Print or Type Name and Position)
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(Date)
If applicant fails to respond to this final action within six months of the mailing date, the application will be abandoned. 15 U.S.C. §1062(b); 37 C.F.R. §2.65(a). Applicant may respond to this final action by:
(1) submitting a response that fully satisfies all outstanding requirements, if feasible (37 C.F.R. §2.64(a)); and/or
(2) filing an appeal to the Trademark Trial and Appeal Board, with an appeal fee of $100 per class (37 C.F.R. §§2.6(a)(18) and 2.64(a); TMEP §§715.01 and 1501 et seq.; TBMP Chapter 1200).
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).
/CGJ/
Charles G. Joyner, Jr.
Trademark Attorney
Law Office 112
(571) 272-9411
Fax: (571) 273-9112
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.