To: | M.T.C., Inc. (bnashipdocket@jw.com) |
Subject: | TRADEMARK APPLICATION NO. 76610681 - EMILIANO'S - T-323.29 |
Sent: | 12/4/2008 2:34:34 PM |
Sent As: | ECOM107@USPTO.GOV |
Attachments: |
UNITED STATES PATENT AND TRADEMARK OFFICE
SERIAL NO: 76/610681
MARK: EMILIANO'S
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CORRESPONDENT ADDRESS: |
RESPOND TO THIS ACTION: http://www.gov.uspto.report/teas/eTEASpageD.htm
GENERAL TRADEMARK INFORMATION: http://www.gov.uspto.report/main/trademarks.htm
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APPLICANT: M.T.C., Inc.
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CORRESPONDENT’S REFERENCE/DOCKET NO: CORRESPONDENT E-MAIL ADDRESS: |
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TO AVOID ABANDONMENT, THE OFFICE MUST RECEIVE A PROPER RESPONSE TO THIS OFFICE ACTION WITHIN 6 MONTHS OF THE ISSUE/MAILING DATE.
ISSUE/MAILING DATE: 12/4/2008
The statement of use has been reviewed by the assigned trademark examining attorney. Applicant must respond timely and completely to the issue(s) below. 15 U.S.C. §1062(b); 37 C.F.R. §§2.62, 2.65(a); TMEP §§711, 718.03.
MARK DIFFERS ON DRAWING AND SPECIMEN
The mark on the specimen disagrees with the mark on the drawing. In this case, the specimen displays the mark as the portrait of a man against a picture-frame background design, with the block wording “EMILIANO'S” above the design and the wording “MARIAGHI BAR” covering the lower half of the design, while the drawing shows the mark as the design of a man with a differently stylized and underlined wording “EMILIANO'S” occupying the lower left corner of the design.
The mark on the drawing must be a substantially exact representation of the mark as used on or in connection with the goods and/or services, as shown by the specimen. 37 C.F.R. §2.51(b); TMEP §807.12(a); see 37 C.F.R. §2.72(b)(1). However, applicant may not amend the mark on the drawing to conform to the display on the specimen because the essence or character of the mark would be materially altered; in other words, the mark on the specimen creates a different commercial impression from the mark on the drawing. See 37 C.F.R. §2.72(b); TMEP §§807.12(a), 807.14 et seq.
Therefore, applicant must submit the following:
(1) A substitute specimen showing use in commerce of the mark on the drawing. See 37 C.F.R. §2.59(b)(2); TMEP §904.05.; and
(2) The following statement, verified with an affidavit or signed declaration under 37 C.F.R. §§2.20, 2.33: “The substitute specimen was in use in commerce prior to the expiration of the time allowed applicant for filing a statement of use.” See 37 C.F.R. §2.59(b)(2); TMEP §904.05. If submitting a specimen requires an amendment to the dates of use, applicant must also verify the amended dates. 37 C.F.R. §2.71(c); TMEP §904.05.
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.
If an amendment of the dates-of-use clause is necessary in order to state the correct dates of first use, Applicant must verify the amendment with an affidavit or a declaration in accordance with 37 C.F.R. §2.20. 37 C.F.R. §2.71(c); TMEP §§903.05 and 1109.09(a).
Applicant may not withdraw the statement of use. 37 C.F.R. §2.88(g); TMEP §1109.17.
If applicant has questions about its application or needs assistance in responding to this Office action, please telephone the assigned trademark examining attorney directly at the number below.
/Dawn Han/
Trademark Examining Attorney
Law Office 107
(571) 272-9432
RESPOND TO THIS ACTION: Applicant should file a response to this Office action online using the form at http://www.gov.uspto.report/teas/eTEASpageD.htm, waiting 48-72 hours if applicant received notification of the Office action via e-mail. For technical assistance with the form, please e-mail TEAS@uspto.gov. For questions about the Office action itself, please contact the assigned examining attorney. Do not respond to this Office action by e-mail; the USPTO does not accept e-mailed responses.
If responding by paper mail, please include the following information: the application serial number, the mark, the filing date and the name, title/position, telephone number and e-mail address of the person signing the response. Please use the following address: Commissioner for Trademarks, P.O. Box 1451, Alexandria, VA 22313-1451.
STATUS CHECK: Check the status of the application at least once every six months from the initial filing date using the USPTO Trademark Applications and Registrations Retrieval (TARR) online system at http://tarr.uspto.gov. When conducting an online status check, print and maintain a copy of the complete TARR screen. If the status of your application has not changed for more than six months, please contact the assigned examining attorney.