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  76/647144

 

This letter responds to the applicant’s communication filed on 9/26/06.

 

The refusal pursuant to Trademark Act Section 2(d) is withdrawn.

 

Upon further review of the present application, the examining attorney has determined that the following requirement should have been raised in the initial Office Action.  The examining attorney apologizes for any inconvenience or delay resulting from the failure to raise this issue previously.

 

Dates of Use are Interpreted as After Filing Date

 

Clarification as to the dates of use in the application is needed.  Applicant has specified “September 2005” as the dates of first use of the mark, which the Office interprets as the last day of September 2005.  TMEP §903.07.  That date is after September 20, 2005, the date on which the application was filed.  In an application based on use in commerce under Section 1(a)(2) of the Trademark Act, applicant must have actually used the mark in commerce at least as early as the filing date of the application.  Trademark Act Section 1(a)(2), 15 U.S.C. §1051(a)(2); 37 C.F.R. §2.34(a)(1); TMEP §§806.01(a) and 901. 

 

If applicant had in fact used the mark in commerce on or before the filing date of the application, then applicant must correct the dates-of-use.  Applicant must verify the corrected dates with a notarized affidavit or a signed declaration under 37 C.F.R. §2.20.  37 C.F.R. §2.71(c); TMEP §903.05.

 

If applicant did not use the mark in commerce on or before the filing date, then applicant may substitute a different basis for filing, if applicant can meet the requirements for the new basis.  TMEP §§806.01 et seq. and 806.03 et seq. 

 

In this case, applicant may wish to amend the application to assert a Section 1(b) basis, the requirements of which are set forth below.

 

Where an application is based on a bona fide intention to use the mark in commerce, applicant must submit the following statement:

 

Applicant has had a bona fide intention to use the mark in commerce on or in connection with the goods or services listed in the application as of the filing date of the application.

 

This statement must be verified with a notarized affidavit or a signed declaration under 37 C.F.R. §§2.20 and 2.33.  Trademark Act Section 1(b), 15 U.S.C. §1051(b); 37 C.F.R. §2.34(a)(2); TMEP §806.01(b).

 

If the applicant has any questions or needs assistance in responding to this Office action, please telephone the assigned examining attorney.

 

 

 

 

/Ronald McMorrow/

Examining Attorney

Law Office 105

(571) 272-9306

 

 

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

 

FOR INQUIRIES OR QUESTIONS ABOUT THIS OFFICE ACTION, PLEASE CONTACT THE ASSIGNED EXAMINING ATTORNEY SPECIFIED ABOVE.