Offc Action Outgoing

TO AVOID ABANDONMENT, THE OFFICE MUST RECEIVE A PROPER RESPONSE TO THIS OFFICE ACTION WITHIN 6 MONTHS OF THE ISSUE/MAILING DATEOF THE ORIGINAL FINAL - October 03, 2007

ISSUE/MAILING DATE:

This letter responds to the applicant’s communication filed on October 24, 2007.

FINAL REFUSAL - MAINTAINED

The final refusal to register because the specimens do not show the applied-for mark in use in commerce as a trademark is maintained. The requirement to provide a supporting declaration is also maintained. 15 U.S.C. §§1051 and 1127; 37 C.F.R. §§2.56 and 2.88.

The substitute specimen identifies a “thermal imaging camera”

Additionally, with regarding to October 24, 2007 response, the mark depicted on the substitute specimen, not only does not support the identified goods, it disagrees with the mark on the drawing.

In this case, the drawing shows the mark as TOUGHCAM. The substitute the specimen displays the mark as ICITOUGHCAM.

The mark shown on the drawing must be a substantially exact representation of the mark as used on or in connection with the goods, as shown by the specimen. 37 C.F.R. §2.51(b); see C.F.R. §2.72(a)(1). However, applicant may not amend 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. 37 C.F.R. §2.72(b); TMEP §§807.14 et seq.

Therefor, applicant must submit the following:

(1) An acceptable substitute specimen showing the mark that appears on the drawing; and

(2) The following statement, verified with an affidavit or signed declaration under 37 C.F.R. §2.20: “The substitute specimen was in use in commerce prior to the expiration of the time allowed applicant for filing a statement of use.” 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).

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

The undersigned being warned that willful false statements and the like 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 registration resulting there from, declares that the substitute specimen was in use in commerce prior to the expiration of the time allowed applicant for filing a statement of use; 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 & Position

_____________________________

Date

Applicant may not withdraw the statement of use. 37 C.F.R. §2.88(g); TMEP §1109.17.

/Linda E. Blohm/ Trademark Examining Attorney

571.272.9129, Law Office 110

Facsimile 571.273.9110

RESPOND TO THIS ACTION: If there are any questions about the Office action, please contact the assigned examining attorney. A response to this Office action should be filed using the form available at http://www.gov.uspto.report/teas/eTEASpageD.htm. If notification of this Office action was received via e-mail, no response using this form may be filed for 72 hours after receipt of the notification. Do not attempt to respond by e-mail as 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.