Offc Action Outgoing

TO AVOID ABANDONMENT OF APPLICANT’S TRADEMARK APPLICATION, THE USPTO MUST RECEIVE APPLICANT’S COMPLETE RESPONSE TO THIS LETTER WITHIN 6 MONTHS OF THE ISSUE/MAILING DATE BELOW.

ISSUE/MAILING DATE:

This Office action is in response to applicant’s communication filed on May 16, 2011.

The amended recitation of goods has been accepted.

The refusal to register under Trademark Act § 2(e)(1) is here repeated.

Registration is refused on the Supplemental Register because the proposed mark is not in use in commerce, as required by Trademark Act Section 23. See 15 U.S.C. §1091(a); 37 C.F.R. §2.47(a). Specifically, this application is based on applicant’s bona fide intention to use the mark in commerce under Section 1(b), and applicant has not yet submitted an amendment to allege use under 37 C.F.R. §2.76. 37 C.F.R. §§2.47(d), 2.75(b); TMEP §§815.02, 1102.03.

This refusal will be withdrawn if applicant (1) deletes the amendment to the Supplemental Register, or (2) submits an amendment to allege use that meets the requirements of 37 C.F.R. §2.76(b), (c). TMEP §§815.02, 1102.03.

If applicant maintains the amendment to the Supplemental Register and provides an acceptable amendment to allege use, the effective filing date of the application will be the date on which applicant met the minimum filing requirements of 37 C.F.R. §2.76(e) for the amendment to allege use. 37 C.F.R. §2.75(b); TMEP §§816.02, 1102.03. In addition, the undersigned trademark examining attorney will conduct a new search of the Office records for conflicting marks based on the later application filing date. TMEP §§206.01, 1102.03.

To amend the application filing basis from an intent-to-use application under Trademark Act Section 1(b) to a use in commerce basis under Section 1(a), applicant must file, prior to approval of the mark for publication, an amendment to allege use that satisfies the requirements of 37 C.F.R. §2.76. See 15 U.S.C. §1051(c); 37 C.F.R. §2.35(b)(8); TMEP §§806.01(b), 1103.

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.

See 37 C.F.R. §§2.6(a)(2), 2.56, 2.76(b), 2.193(e)(1); TMEP §§1104.08, 1104.09(e).

Amendments to allege use can be filed online at http://www.gov.uspto.report/teas/index.html. Filing an amendment to allege use does not extend the deadline for filing a response to an outstanding Office action. TMEP §1104.

/David C. Reihner/, Examining Attorney

Law Office 111, 571-272-9392

571-273-9111 fax.

David.Reihner@USPTO.gov

TO RESPOND TO THIS LETTER: Go to http://www.gov.uspto.report/trademarks/teas/response_forms.jsp. Please wait 48-72 hours from the issue/mailing date before using TEAS, to allow for necessary system updates of the application. For technical assistance with online forms, e-mail TEAS@uspto.gov. For questions about the Office action itself, please contact the assigned trademark examining attorney. E-mail communications will not be accepted as responses to Office actions; therefore, do not respond to this Office action by e-mail.

All informal e-mail communications relevant to this application will be placed in the official application record.

WHO MUST SIGN THE RESPONSE: It must be personally signed by an individual applicant or someone with legal authority to bind an applicant (i.e., a corporate officer, a general partner, all joint applicants). If an applicant is represented by an attorney, the attorney must sign the response.

PERIODICALLY CHECK THE STATUS OF THE APPLICATION: To ensure that applicant does not miss crucial deadlines or official notices, check the status of the application every three to four months using Trademark Applications and Registrations Retrieval (TARR) at http://tarr.gov.uspto.report/. Please keep a copy of the complete TARR screen. If TARR shows no change for more than six months, call 1-800-786-9199. For more information on checking status, see http://www.gov.uspto.report/trademarks/process/status/.

TO UPDATE CORRESPONDENCE/E-MAIL ADDRESS: Use the TEAS form at http://www.gov.uspto.report/teas/eTEASpageE.htm.