OFFICE ACTION

TO AVOID ABANDONMENT, THE OFFICE MUST RECEIVE A PROPER RESPONSE TO THIS OFFICE ACTION WITHIN 6 MONTHS OF THE ISSUE/MAILING DATE.

ISSUE/MAILING DATE:

The assigned examining attorney has reviewed the statement of use filed on January 17, 2008 and has determined the following.

Mark Differs on Drawing and Specimen

The mark depicted on the specimen disagrees with the mark on the drawing. In this case, the font used in “Great Moods” is the same as in the drawing but a bamboo plant does not appear to the left of the words, and the word, “aromatherapy,” does not appear under “great moods.” The drawing of the mark shows the mark as “Great Moods Aromatherapy” with a bamboo design to the left of the stylized words.

The mark shown on the drawing must be a substantially exact representation of the mark as used on or in connection with the goods and/or services, 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.

Please note that the word, “aromatherapy” need not appear on the specimen, but then the applicant must also delete the disclaimer of “aromatherapy” since it will no longer be necessary. However, the remainder of the mark should be a substantially exact representation of the drawing.

Therefore, applicant must submit the following:

(1) A 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).

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

Declaration for a Substitute Specimen

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 and Position)

_____________________________

(Date)

/rscb/

Robin S. Chosid-Brown, Esq.

Law Office 102

(571) 272-9252

robin.chosid-brown@uspto.gov

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.uspto.gov/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.