UNITED STATES PATENT AND TRADEMARK OFFICE
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SERIAL NO: 76/665134
APPLICANT: Exhart Environmental Systems, Inc.
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CORRESPONDENT ADDRESS: |
RETURN ADDRESS: Commissioner for Trademarks P.O. Box 1451 Alexandria, VA 22313-1451
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MARK: DIRT DWARFS
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CORRESPONDENT’S REFERENCE/DOCKET NO: 06-17039
CORRESPONDENT EMAIL ADDRESS: |
Please provide in all correspondence:
1. Filing date, serial number, mark and applicant's name. 2. Date of this Office Action. 3. Examining Attorney's name and Law Office number. 4. Your telephone number and e-mail address.
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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 76/665134
The assigned examining attorney has reviewed the referenced application and determined the following.
Identification of Goods
The wording “lawn and wall garden ornament” in the identification of goods must be clarified because it is too broad and could include goods in other international classes. TMEP §§1402.01 and 1402.03. Applicant must amend the identification to specify the common commercial name of the goods. If there is no common commercial name, applicant must describe the product and its intended uses. TMEP §1402.01.
Applicant may adopt the following identification of goods, if accurate: TMEP § 1402.01.
Metal lawn and wall garden ornament.
Lawn and wall garden ornament made of (specify bone, ivory, plaster, plastic, wax, wood).
Class 21
Lawn and wall garden ornament made of (specify china, crystal, glass, porcelain).
Please note that, while an application may be amended to clarify or limit the identification, additions to the identification are not permitted. 37 C.F.R. §2.71(a); TMEP §1402.06. Therefore, the applicant may not amend to include any goods that are not within the scope of goods set forth in the present identification.
Multiple Class Application
If applicant prosecutes this application as a combined, or multiple-class application, then applicant must comply with each of the requirements below for those goods and/or services based on actual use in commerce under Trademark Act Section 1(a):
(1) Applicant must list the goods/services by international class with the classes listed in ascending numerical order;
(2) Applicant must submit a filing fee for each international class of goods and/or services not covered by the fee already paid (current fee information should be confirmed at http://www.uspto.gov); and
(3) For each additional class of goods and/or services, applicant must submit:
(a) dates of first use of the mark anywhere and dates of first use of the mark in commerce, or a statement that the dates of use in the initial application apply to that class; the dates of use, both anywhere and in commerce, must be at least as early as the filing date of the application;
(b) one specimen showing use of the mark for each class of goods and/or services; the specimen must have been in use in commerce at least as early as the filing date of the application;
(c) a statement that “the specimen was in use in commerce on or in connection with the goods and/or services listed in the application at least as early as the filing date of the application;” and
(d) verification of the statements in 3(a) and 3(c) in an affidavit or a signed declaration under 37 C.F.R. §2.20. (NOTE: Verification is not required where (1) the dates of use for the added class are stated to be the same as the dates of use specified in the initial application, or (2) the original specimens are acceptable for the added class.)
37 C.F.R. §§2.6, 2.34(a), 2.59, 2.71(c), and 2.86(a); TMEP §§810, 904.09, 1403.01 and 1403.02(c).
Please note that the specimen of record is acceptable for Class 20 only.
Disclaimer
Applicant must insert a disclaimer of DWARFS in the application because it describes a desirable feature of the goods, that is, dwarfs shaped ornaments. Trademark Act Section 6, 15 U.S.C. §1056; TMEP §§1213 and 1213.08(a)(i).
The term DWARFS is defined as”
1. a. An abnormally small person, often having limbs and features not properly proportioned or formed. b. An atypically small animal or plant.
2. A small creature resembling a human being, often ugly, appearing in legends and fairy tales.[1]
The following is the accepted standard format for a disclaimer:
No claim is made to the exclusive right to use “DWARFS” apart from the mark as shown.
The examining attorney has searched the Office records and has found no similar registered or pending mark which would bar registration under Trademark Act Section 2(d), 15 U.S.C. §1052(d). TMEP §704.02.
If the applicant has any questions or needs assistance in responding to this Office action, please telephone the assigned examining attorney.
/Alice Benmaman/
Trademark Attorney
Law Office 116
(571) 272-9126
HOW TO RESPOND TO THIS OFFICE ACTION:
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.
[1]The American Heritage® Dictionary of the English Language, Third Edition copyright © 1992 by Houghton Mifflin Company. Electronic version licensed from INSO Corporation; further reproduction and distribution restricted in accordance with the Copyright Law of the United States. All rights reserved.