Response to Office Action

PTO Form 1957 (Rev 9/2005)

OMB No. 0651-0050 (Exp. 07/31/2017)

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PTO Form 1957 (Rev 9/2005)

OMB No. 0651-0050 (Exp. 07/31/2017)

Response to Office Action

To the Commissioner for Trademarks:

Application serial no. 76708485 KRYOGENIFEX (Stylized and/or with Design, see http://tess2.gov.uspto.report/ImageAgent/ImageAgentProxy?getImage=76708485) has been amended as follows:

ARGUMENT(S)
In response to the substantive refusal(s), please note the following:

The Examiner has refused registration of the mark, as used on the specimen of record, based on the opinion that it merely identifies a process or system and does not function as a trademark to distinguish applicant's goods.  Applicant respectfully submits that the subsitute specimens included in this response support use of the mark on tangible products and obiviates the objection.

CLASSIFICATION AND LISTING OF GOODS/SERVICES
Applicant proposes to amend the following class of goods/services in the application:
Current: Class 011 for Special effects system for transporting cryogenic fluids(s) from a container in which it is held in its liquid state, to produce a controlled and concentrated cloud or fog-like effect in a defined area in a manner which is substantially regulated and achieves and evenly pressurized distribution composed of a control box, an optional humidifier, solenoids, metal pipelines and elbows, metal anchors and fittings therefore, as well as a fluid outlet, from which a preferably pressurized flow of the liquid nitrogen emerges for distribution from a plurality of delivery ports in the pipelines, and a fluid inlet, or "vent" valve of the contain"
Original Filing Basis:
Filing Basis: Section 1(a), Use in Commerce: The applicant is using the mark in commerce, or the applicant's related company or licensee is using the mark in commerce, on or in connection with the identified goods and/or services. 15 U.S.C. Section 1051(a), as amended. The mark was first used at least as early as 08/01/1999 and first used in commerce at least as early as 08/01/1999 , and is now in use in such commerce.

Proposed:
Tracked Text Description: Special effects system for transporting cryogenic fluids(s) from a container in which it is held in its liquid state, to produce a controlled and concentrated cloud or fog-like effect in a defined area in a manner which is substantially regulated and achieves and evenly pressurized distribution composed of a control box, an optional humidifier, solenoids, metal pipelines and elbows, metal anchors and fittings therefore, as well as a fluid outlet, from which a preferably pressurized flow of the liquid nitrogen emerges for distribution from a plurality of delivery ports in the pipelines, and a fluid inlet, or "vent" valve of the containe"; Special effects system for use as a vaporizer comprised of a cryogenic vaporizer, a control box, a optional humidifier, solenoids, metal pipelines and elbows, metal anchors and a fluid outletClass 011 for Special effects system for use as a vaporizer comprised of a cryogenic vaporizer, a control box, a optional humidifier, solenoids, metal pipelines and elbows, metal anchors and a fluid outlet
Filing Basis: Section 1(a), Use in Commerce: The applicant is using the mark in commerce, or the applicant's related company or licensee is using the mark in commerce, on or in connection with the identified goods and/or services. 15 U.S.C. Section 1051(a), as amended. The mark was first used at least as early as 08/01/1999 and first used in commerce at least as early as 08/01/1999 , and is now in use in such commerce.
Applicant hereby submits one(or more) specimen(s) for Class 011 . The specimen(s) submitted consists of product sheet including a photo of the product with the mark .
"The substitute (or new, or originally submitted, if appropriate) specimen(s) was/were in use in commerce at least as early as the filing date of the application"[for an application based on Section 1(a), Use in Commerce] OR "The substitute (or new, or originally submitted, if appropriate) specimen(s) was/were in use in commerce prior either to the filing of the Amendment to Allege Use or expiration of the filing deadline for filing a Statement of Use" [for an application based on Section 1(b) Intent-to-Use]. OR "The attached specimen is a true copy of the specimen that was originally submitted with the application, amendment to allege use, or statement of use" [for an illegible specimen]. Specimen File1

ADDITIONAL STATEMENTS
Claim of Active Prior Registration(s)
The applicant claims ownership of U.S. Registration Number(s) 2928564.


Miscellaneous Statement
Please delete the standard character claim from the application"


Color Claim
The color(s) blue is/are claimed as a feature of the mark.

Description of mark
The mark consists of KRYOGENIFEX appearing in blue with a snowflake like design appearing to the left.

SIGNATURE(S)
Declaration Signature
If the applicant is seeking registration under Section 1(b) and/or Section 44 of the Trademark Act, the applicant has had a bona fide intention to use or use through the applicant's related company or licensee the mark in commerce on or in connection with the identified goods and/or services as of the filing date of the application. 37 C.F.R. Secs. 2.34(a)(2)(i); 2.34 (a)(3)(i); and 2.34(a)(4)(ii); and/or the applicant has had a bona fide intention to exercise legitimate control over the use of the mark in commerce by its members. 37 C.F. R. Sec. 2.44. If the applicant is seeking registration under Section 1(a) of the Trademark Act, the mark was in use in commerce on or in connection with the goods and/or services listed in the application as of the application filing date or as of the date of any submitted allegation of use. 37 C.F.R. Secs. 2.34(a)(1)(i); and/or the applicant has exercised legitimate control over the use of the mark in commerce by its members. 37 C.F.R. Sec. 2.44. The undersigned, being hereby warned that willful false statements and the like so made are punishable by fine or imprisonment, or both, under 18 U.S.C. Section 1001, and that such willful false statements may jeopardize the validity of the application or any resulting registration, declares that he/she is properly authorized to execute this application on behalf of the applicant; he/she believes the applicant to be the owner of the trademark/service mark sought to be registered, or, if the application is being filed under 15 U.S.C. Section 1051(b), he/she believes applicant to be entitled to use such mark in commerce; to the best of his/her knowledge and belief no other person, firm, corporation, or association has the right to use the mark in commerce, either in the identical form thereof or in such near resemblance thereto as to be likely, when used on or in connection with the goods/services of such other person, to cause confusion, or to cause mistake, or to deceive; that if the original application was submitted unsigned, that all statements in the original application and this submission made of the declaration signer's knowledge are true; and all statements in the original application and this submission made on information and belief are believed to be true.

Signature: /Peter A. Matos/      Date: 05/25/2012
Signatory's Name: Peter A. Matos
Signatory's Position: Attorney of record, Florida bar member
Signatory's Phone Number: 305-858-8000


Response Signature
Signature: /Peter A. Matos/     Date: 05/25/2012
Signatory's Name: Peter A. Matos
Signatory's Position: Attorney of record, Florida bar member

Signatory's Phone Number: 305-858-8000

The signatory has confirmed that he/she is an attorney who is a member in good standing of the bar of the highest court of a U.S. state, which includes the District of Columbia, Puerto Rico, and other federal territories and possessions; and he/she is currently the applicant's attorney or an associate thereof; and to the best of his/her knowledge, if prior to his/her appointment another U.S. attorney or a Canadian attorney/agent not currently associated with his/her company/firm previously represented the applicant in this matter: (1) the applicant has filed or is concurrently filing a signed revocation of or substitute power of attorney with the USPTO; (2) the USPTO has granted the request of the prior representative to withdraw; (3) the applicant has filed a power of attorney appointing him/her in this matter; or (4) the applicant's appointed U.S. attorney or Canadian attorney/agent has filed a power of attorney appointing him/her as an associate attorney in this matter.

        
Serial Number: 76708485
Internet Transmission Date: Fri May 25 09:33:51 EDT 2012
TEAS Stamp: USPTO/ROA-XXX.XXX.XX.XXX-201205250933512
88856-76708485-490a53d5aa0491fcd7dfb394a
e39d9116f3-N/A-N/A-20120525093150929969