UNITED STATES PATENT AND TRADEMARK OFFICE
SERIAL NO: 76/693105
MARK: HEALTHSPAN
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CORRESPONDENT ADDRESS: |
RESPOND TO THIS ACTION: http://www.gov.uspto.report/teas/eTEASpageD.htm
GENERAL TRADEMARK INFORMATION: http://www.gov.uspto.report/main/trademarks.htm
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APPLICANT: Schneider, Thomas R.
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CORRESPONDENT’S REFERENCE/DOCKET NO: CORRESPONDENT E-MAIL ADDRESS: |
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TO AVOID ABANDONMENT, THE OFFICE MUST RECEIVE A PROPER RESPONSE TO THIS OFFICE ACTION WITHIN 6 MONTHS OF THE ISSUE/MAILING DATE.
The referenced application has been reviewed by the assigned trademark examining attorney. Applicant must respond timely and completely to the issue(s) below. 15 U.S.C. §1062(b); 37 C.F.R. §§2.62, 2.65(a); TMEP §§711, 718.03.
SECTION 2(d) REFUSAL – LIKELIHOOD OF CONFUSION:
In this case, the following factors are the most relevant: similarity of the marks, similarity of the goods and/or services, and similarity of trade channels of the goods and/or services. See In re Opus One, Inc., 60 USPQ2d 1812 (TTAB 2001); In re Dakin’s Miniatures Inc., 59 USPQ2d 1593 (TTAB 1999); In re Azteca Rest. Enters., Inc., 50 USPQ2d 1209 (TTAB 1999); TMEP §§1207.01 et seq.
Applicant’s mark is HEALTHSPAN for:
IC 5: Nutraceuticals
IC 41: Educational materials, information, and seminars regarding nutraceuticals, age management, and regenerative medicine.
The cited mark is:
HEALTHSPAN 2000 for “Nutritional and metabolic food supplements.” (Registration No. 2689604).
The respective marks are highly similar. Both contain the word “HEALTHSPAN”.
The goods and services of the respective parties are closely related.
Applicant’s goods include “nutraceuticals.” “Nutraceuticals” is “a foodstuff (as a fortified food or dietary supplement) that provides health benefits in addition to its basic nutritional value.” See attached online dictionary definition. Registrant also sells food supplements. Applicant’s services are about food supplements.
For the reasons stated above, registration is refused pursuant to Section 2(d) of the Trademark Act.
POTENTIAL LIKELIHOOD OF CONFUSION:
If applicant believes there is no potential conflict between this application and the earlier-filed application, then applicant may present arguments relevant to the issue in a response to this Office action. The election not to submit arguments at this time in no way limits applicant’s right to address this issue at a later point. Nevertheless, applicant must respond to the informalities and refusals.
ADDITIONAL REFUSAL:
Please note the following additional refusal.
MERELY DESCRIPTIVE REFUSAL:
Applicant’s mark is HEALTHSPAN for:
IC 5: Nutraceuticals
IC 41: Educational materials, information, and seminars regarding nutraceuticals, age management, and regenerative medicine.
HEALTHSPAN is “the period of a person’s life during which they are generally healthy and free from serious or chronic illness.” See attached Internet evidence. Applicant’s goods and services are about a person’s healthspan.
For the reasons stated above, the proposed mark is at minimum highly descriptive of the goods and services identified in the application. As such, the merely descriptive mark is refused registration under Section 2(e)(1) of the Trademark Act.
RESPONSE:
Although the trademark examining attorney has refused registration, applicant may respond to the refusal to register by submitting evidence and arguments in support of registration.
INFORMALITIES:
The applicant must respond to the following issues.
SUPPLEMENTAL REGISTER (ADVISORY) – NOT ELIGIBLE:
THE 2(e)(1) REFUSAL WILL BE WITHDRAWN IF APPLICANT ELECTS TO REGISTER ON THE SUPPLEMENTAL REGISTER. THIS APPLICATION IS NOT ELIGIBLE FOR REGISTRATION ON THE SUPPLEMENTAL REGISTER UNTIL AN ACCEPTABLE AMENDMENT TO ALLEGE USE HAS BEEN FILED.
The following must be submitted in an amendment to allege use in order to amend an application to use in commerce under Section 1(a):
(1) The following statement: “Applicant is believed to be the owner of the mark and that the mark is in use in commerce;”
(2) The date of first use of the mark anywhere on or in connection with the goods and/or services;
(3) The date of first use of the mark in commerce as a trademark or service mark;
(4) A specimen showing actual use of the mark in commerce for each class of goods and/or services for which use is being asserted. If a single specimen supports multiple classes, applicant should indicate which classes the specimen supports rather than providing multiple copies of the same specimen;
(5) A filing fee of $100 per class for each international class of goods and/or services for which use is being asserted (current fee information should be confirmed at http://www.uspto.gov); and
(6) Verification of the above (1) through (3) requirements in an affidavit or signed declaration under 37 C.F.R. §§2.20, 2.33.
See 37 C.F.R. §§2.6(a)(2), 2.56, 2.76(b); TMEP §§1104.08, 1104.09(e).
Amendments to allege use can be filed online at http://www.gov.uspto.report/teas/index.html.
See 15 U.S.C. §§1052(d), 1091, 1094; TMEP §815.
IDENTIFICATION OF GOODS & SERVICES:
Class 5 -
In Class 5, applicant’s identification is: “nutraceuticals.”
The above wording is unacceptable as written because it is indefinite. Applicant must specify what the nutraceuticals are used for. Applicant may adopt the following identification of goods, if accurate: “nutraceuticals for use as a dietary supplement” in Class 5. See TMEP §1402.01.
Taking the above together, applicant may adopt the following:
Class 5: Nutraceuticals for use as a dietary supplement
TMEP §1402.01.
Class 41 -
In Class 41, applicant’s identification is: “Educational materials, information, and seminars regarding nutraceuticals, age management, and regenerative medicine.”
The following wording is unacceptable:
“Educational materials” is unacceptable as written in Class 41 because it is a good. Moreover, applicant must specify the type of educational material. Applicant may adopt the following identification of services, if accurate: “printed educational materials in the field of nutraceuticals, age management and regenerative medicine” in Class 16. See TMEP §1402.01.
“Information . . . regarding nutraceuticals, age management and regenerative medicine” is unacceptable as written in Class 41 because it is indefinite and misclassified. The subject matter of the information determines classification. If accurate, applicant may amend to: “providing information about nutraceuticals for use as a dietary supplement, management of age for health purposes only and regenerative medicine.
Taking the above together, applicant may adopt the following:
Class 16: Printed educational materials in the field of nutraceuticals, age management and regenerative medicine
Class 41: Educational services, namely, providing seminars in the field of nutraceuticals, age management and regenerative medicine
Class 44: Providing information about nutraceuticals for use as a dietary supplement, management of age for health purposes only and regenerative medicine
TMEP §1402.01.
For assistance with identifying and classifying goods and/or services in trademark applications, please see the online searchable Manual of Acceptable Identifications of Goods and Services at http://tess2.gov.uspto.report/netahtml/tidm.html. See TMEP §1402.04.
MULTI-CLASS REQUIREMENTS:
(1) Applicant must list the goods and/or services by international class; and
(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).
See 37 C.F.R. §§2.34(a)(2)-(3), 2.86(a); TMEP §§1403.01, 1403.02(c).
FEES FOR ADDITIONAL CLASSES:
The filing fee for adding classes to an application is as follows:
(1) $325 per class, when the fees are submitted with a response filed online via the Trademark Electronic Application System (TEAS) at http://www.gov.uspto.report/teas/index.html; or
(2) $375 per class, when the fees are submitted with a paper response.
37 C.F.R. §2.6(a)(1)(i)-(a)(1)(ii); TMEP §810.
REQUEST FOR MORE INFORMATION:
The submitted factual information must make clear what the services are and how they are rendered, their salient features, and their prospective customers and channels of trade. Conclusory statements regarding the services will not satisfy this requirement for information.
Failure to respond to a request for information is an additional ground for refusing registration. See In re DTI P’ship LLP, 67 USPQ2d 1699, 1701-02 (TTAB 2003). Merely stating that information about the services is available on applicant’s website is an inappropriate response to a request for additional information and is insufficient to make the relevant information of record. See In re Planalytics, 70 USPQ2d at 1457-58.
Applicant must answer the following questions:
If applicant has questions about its application or needs assistance in responding to this Office action, please telephone the assigned trademark examining attorney directly at the number below.
/Simon Teng/
Simon Teng
Trademark Examining Attorney
United States Patent Trademark Office
Law Office 105
571-272-4930 Telephone
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.