Offc Action Outgoing

UNITED STATES PATENT AND TRADEMARK OFFICE

 

OFFICE ACTION

 

RESPONSE TIME LIMIT:  TO AVOID ABANDONMENT, THE OFFICE MUST RECEIVE A PROPER RESPONSE TO THIS OFFICE ACTION WITHIN 6 MONTHS OF THE MAILING OR E-MAILING DATE. 

 

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  76/634138

 

This letter responds to applicant's communications filed on April 13 and May 4, 2006.

 

The amendment of the identification is acceptable; the new drawing is acceptable; the correction of applicant’s name has been entered.

 

The new specimens are acceptable as to their form and what they indicate.  However, they present the following new issue.

 

Applicant must submit (1) a specimen showing use of the proposed mark with the appropriate colors claimed as a feature of the mark, and (2) a statement that “the substitute specimen was in use in commerce at least as early as the filing date of the application,” verified with an affidavit or a signed declaration under 37 C.F.R. §2.20.  37 C.F.R. §2.59(a); TMEP §§904.02(c) and 904.09.

 

Applicant has claimed the colors black, white, blue and orange as a feature of the mark.  However, the specimen submitted with the application does not demonstrate use of the mark as shown in the drawing because they do not show the mark in color.

 

The following is a sample declaration under 37 C.F.R. §2.20 with a supporting statement for a substitute specimen:

 

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 and the like may jeopardize the validity of the application or document or any resulting registration, declares that the substitute specimen was in use in commerce at least as early as the filing date of the application; all statements made of his/her own knowledge are true; and all statements made on information and belief are believed to be true.

_____________________________

(Signature)

_____________________________

(Print or Type Name and Position)

_____________________________

(Date)

 

If the declaration is filed electronically through TEAS, then applicant should sign the declaration by entering a “symbol” that applicant has adopted as a signature (e.g., /john doe/, /drl/, and /544-4925/).  The Office will accept any combination of letters, numbers, spaces and/or punctuation marks as a valid signature if it is placed between two forward slash (“/”) symbols.  37 C.F.R. §§ 2.33(d) and 2.193(c)(1)(iii); TMEP §§304.08 and 804.05.  If applicant submits a response via electronic means, please note that the substitute specimen must be a digitized image submitted in .jpg format.  37 C.F.R. §2.56(d)(4); TMEP §904.02.

 

Pending an adequate response to the above, registration is refused because the specimens of record do not show use of the proposed mark as a service mark.  Trademark Act Sections 1, 2, 3 and 45, 15 U.S.C. §§1051, 1052, 1053 and 1127; TMEP §§904.11 and 1301.02 et seq.

 

Description of color

 

The revised description of the mark contain extraneous and indefinite material.  This is not acceptable.

 

Applicant will submit the following statement describing color in the mark:

 

The color black, white, blue and orange are claimed as a feature of the mark.  The color black appears in a rectangle at the lower right of the mark; the color white appears in the wording and in drafting lines in the background; the color orange appears in a rectangle at the upper left of the mark; the color light blue appears in a rectangle at the upper right of the mark; the color blue is the background for the remainder of the mark.

 

37 C.F.R. §2.52(b)(1); TMEP §808.01(d).

 

If applicant has any questions, please contact the assigned examining attorney. 

 

Sincerely,

/Melvin T. Axilbund/

 

Melvin T. Axilbund

Examining Attorney, Law Office 113

melvin.axilbund@uspto.gov

571/272-9424

 

HOW TO RESPOND TO THIS OFFICE ACTION:

• ONLINE RESPONSE:  You may respond using the Office’s Trademark Electronic Application System (TEAS) Response to Office action form available on our website at http://www.gov.uspto.report/teas/index.html.  If the Office action issued via e-mail, you must wait 72 hours after receipt of the Office action to respond via TEAS.  NOTE:  Do not respond by e-mail.  THE USPTO WILL NOT ACCEPT AN E-MAILED RESPONSE.
• REGULAR MAIL RESPONSE:  To respond by regular mail, your response should be sent to the mailing return address above, and include the serial number, law office number, and examining attorney’s name.  NOTE:  The filing date of the response will be the date of receipt in the Office, not the postmarked date.  To ensure your response is timely, use a certificate of mailing.  37 C.F.R. §2.197.

 

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