Response to Office Action

PTO Form 1957 (Rev 9/2005)

OMB No. 0651-0050 (Exp. 04/30/2011)

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PTO Form 1957 (Rev 9/2005)

OMB No. 0651-0050 (Exp. 04/30/2011)

Response to Office Action

To the Commissioner for Trademarks:

Application serial no. 76655586 has been amended as follows:

MARK
Applicant proposes to amend the mark as follows:
Current: DOWNUNDER VODKA (Stylized and/or with Design)
"The mark consists of the words "downunder" and "vodka" and a design representing a boomerang."

Proposed: DOWNUNDER VODKA (Stylized and/or with Design, see mark)


The color(s) orange and black is/are claimed as a feature of the mark.

The mark consists of the wording "DOWNUNDER" spelled backwards and upside down. Underneath that wording is the wording "VODKA". Above the wording is a stylized design of a boomerang.

ARGUMENT(S)
In response to the substantive refusal(s), please note the following:

We have received your Office Action dated 11/10/2009. In response to the Office Action, please note the following:

Section 2(d) Refusal: Likelihood of Confusion

Similarity of the Marks: When comparing Applicant's mark in its entirety to Registrant's marks, the overall appearance is sufficiently dissimilar that consumer confusion is unlikely. Applicant's design mark includes the visual of a boomerang along with a backwards, upside-down depiction of the word "Downunder," not merely the word "Downunder" in standard characters. Because of this, the design portion is the most visually prominent aspect of the mark, sufficiently differentiating it from Registrant's standard character mark.

Registrant's mark does not encompass stylized, backwards or upside-down wording, nor any visual depictions appearing alongside the wording. As a result, Applicant's mark, viewing the word and pictorial symbols as a whole, is distinct from Registrant's mark and unlikely to cause consumer confusion.

Section 44(d)

The Examiner indicated that the Applicant must submit a copy of its foreign registration to satisfy the requirements of Trademark Act Section 44(e). Applicant is currently waiting on documentation of the mark's foreign registration and respectfully requests suspension of Applicant's application until it can obtain a copy of the foreign registration to perfect its 44(e) requirements.

EVIDENCE
Evidence in the nature of As required by Examiner, Applicant has included a new drawing of the mark which clearly depicts the mark in sufficient detail. has been attached.
Evidence-1

ADDITIONAL STATEMENTS
Disclaimer
No claim is made to the exclusive right to use VODKA apart from the mark as shown.

SIGNATURE(S)
Response Signature
Signature: /Brady Skinner/     Date: 04/28/2010
Signatory's Name: Brady Skinner
Signatory's Position: President

The signatory has confirmed that he/she is not represented by either an authorized attorney or Canadian attorney/agent, and that he/she is either (1) the applicant or (2) a person(s) with legal authority to bind the applicant; and if an authorized U.S. attorney or Canadian attorney/agent previously represented him/her in this matter, either he/she has filed a signed revocation of power of attorney with the USPTO or the USPTO has granted the request of his/her prior representative to withdraw.

        
Serial Number: 76655586
Internet Transmission Date: Wed Apr 28 07:10:48 EDT 2010
TEAS Stamp: USPTO/ROA-XX.XXX.XXX.XXX-201004280710480
29112-76655586-46093e4d2c71deaf7c7bde395
c9d38ee68-N/A-N/A-20100428064135317199