Examiners Amendment Priority

OFFICE SEARCH: 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. Section 1052(d). TMEP section 704.02.

AMENDMENT: In accordance with the authorization granted by Raymond Sun on October 1, 2008, the application has been AMENDED as indicated below. Please advise the undersigned immediately if there is an objection to the amendment. Otherwise, no response is necessary. TMEP §707.

If the identification of goods or services has been amended, please note that any future amendments must be in accordance with 37 C.F.R. 2.71(a); TMEP section 1402.07(e).

Amendment of Identification of Goods

The identification of goods is amended to read as follows:

Class 020

“Furniture, namely, garment storage racks and storage and organization units, namely, storage racks, hampers, shelving, wall cabinet, wall shelves, work stool, workbench, chefs table, rollable bed, magazine racks, shoe racks, photo screens for use as furniture, laundry hampers, and cat and dog beds; and wine racks.”

Class 021

“Household kitchen utensils, namely, graters, spatulas, strainers, turners, skimmers, wood chopping blocks, forks, knives, spoons; Containers for household or kitchen use of bamboo; Cuffing boards; Lazy susans; Salad bowls; Canisters for household and kitchen use; Fitted picnic baskets; Willow storage baskets; Mixing bowls; Mugs; Tumblers, namely, toothbrush holders, drinking tumblers; Pilsner drinking glasses; Dish drying racks; Cookware in the nature of cooking pot sets; and Trash cans”

TMEP §1402.01(e).

PRIORITY ACTION

The following issues were discussed with the person listed above.

Specimens Not Acceptable – Classes 011 and 022

The specimens are not acceptable because they do not show the applied-for mark used in connection with any of the goods specified in the application. An application must include a specimen showing the applied-for mark in use in commerce for each class of goods and/or services based on Section 1(a) in the application. Trademark Act Sections 1 and 45, 15 U.S.C. §§1051, 1127; 37 C.F.R. §§2.34(a)(1)(iv), 2.56; TMEP §§904, 904.07(a), 1301.04.

In this case, the specimen for Class 011 shows a fan. Applicant should note that this specimen was acceptable as of the filing date of the application, but pursuant to a Section 2(d) likelihood of refusal issued, “electric fans” were deleted from the identification of goods. Class 011 goods now consist of mini-refrigerators and chafing dishes; accordingly, a specimen should be submitted reflecting the propose mark in connection with mini-refrigerators and/or chafing dishes.

With respect to Class 022, the specimen indicates that the packaged good is a “laundry sorter cart” which is a good classified in Class 012. For this class, applicant must submit a specimen showing the proposed mark, SEVILLE CLASSICS, in connection with “laundry bags and stands for laundry bag, and tarpaulins.”

Therefore, applicant must submit the following:

(1) A substitute specimen showing use of the mark for each class of goods and/or services specified in the application; and

(2) The following statement, verified with an affidavit or signed declaration under 37 C.F.R. §2.20: “The specimen was in use in commerce at least as early as the filing date of the application.” 37 C.F.R. §2.59(a); 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 at least as early as the filing date of the application; 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)

Examples of specimens for goods are tags, labels, instruction manuals, containers, photographs that show the mark on the goods or packaging, or displays associated with the goods at their point of sale. TMEP §§904.03 et seq.

If applicant cannot satisfy the above requirements, applicant may amend the Section 1(a) filing basis (use in commerce) to Section 1(b) (intent to use basis), for which no specimen is required. However, should applicant amend the basis to Section 1(b), registration cannot be granted until applicant later amends the application back to use in commerce by filing an acceptable allegation of use with a proper specimen. 15 U.S.C. §1051(c); 37 C.F.R. §§2.76, 2.88; TMEP Chapter 1100.

In order to amend to Section 1(b), applicant must submit the following statement, verified with an affidavit or signed declaration under 37 C.F.R. §2.20: “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.” 15 U.S.C. §1051(b); 37 C.F.R. §§2.34(a)(2), 2.35(b)(1); TMEP §806.03(c).

Pending a proper response, registration is refused because the specimen does not show the applied-for mark in use in commerce as a trademark or service mark for the identified goods or services. 15 U.S.C. §§1051, 1127; 37 C.F.R. §§2.34(a)(1)(iv), 2.56; TMEP §§904, 904.07(a).

/cglasser/

Caryn Glasser

Trademark Examining Attorney

Law Office 108

Phone: (571) 270-1517

Fax: (571) 270-2517

RESPOND TO THIS ACTION: Applicant should file a response to this Office action online using the form at http://www.gov.uspto.report/teas/eTEASpageD.htm, waiting 48-72 hours if applicant received notification of the Office action via e-mail. For technical assistance with the form, please e-mail TEAS@uspto.gov. For questions about the Office action itself, please contact the assigned examining attorney. Do not respond to this Office action by e-mail; 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.