Response to Office Action

PTO Form 1957 (Rev 9/2005)

OMB No. 0651-0050 (Exp. 04/2009)

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PTO Form 1957 (Rev 9/2005)

OMB No. 0651-0050 (Exp. 04/2009)

Response to Office Action

To the Commissioner for Trademarks:

Application serial no. 77001159 has been amended as follows:
Argument(s)
In response to the substantive refusal(s), please note the following:
The trademark is not "merely descriptive" of Applicant's goods, which are erroneously described by the Examining Attorney as "soft drinks that effervesce in a cup" and "a cup that effervesces or fizzes". In fact, Applicant's goods consist of an empty plastic cup which is designed to be filled with ice cream and then attached to a bottle of soda. Applicant's trademark, "The Fizz (Cup)", does not "describe" the empty plasic cup, but rather indicates to the consumer that, if used in the itended manner, the cup will "create" an ice cream soda float--the soda will "fizz" when the user drinks it "through" the ice cream in the cup.

Evidence
Evidence in the nature of Photos of product in its packaging has been attached.
Evidence-1
Evidence-2

Classification and Listing of Goods/Services

Applicant hereby amends the following class of goods/services in the application as follows:
Current: Class 021 for A cup which is filled with ice cream and which is attached to a plastic soda bottle
Original Filing Basis: 1(b).
Proposed: Class 021 for An EMPTY PLASTIC CUP which is to be filled with ice cream by the user and which the user then attaches to a plastic bottle filled with soda.
Filing Basis: 1(b).
Additional Statements

Applicant believes there is no conflct with pending Application No. 78616431, as that application is for a soft drink/beverage, and Applicant's product is an empty plastic cup which the user fills with ice cream and then attaches to a bottle of soda. There is no likelihood of confusion between "Cream Fizz" as the trademark for a beverage and Applicant's trademark, "The Fizz (Cup)" for its empty plastic cup.

Declaration Signature
If the applicant is seeking registration under Section 1(b) and/or Section 44 of the Trademark Act, the applicant 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). 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 or services listed in the application as of the application filing date. 37 C.F.R. Secs. 2.34(a)(1)(i). 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. §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. §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: /paulslevine/      Date: 03/08/2007
Signatory's Name: Paul S. Levine
Signatory's Position: Attorney

Response Signature
Signature: /paulslevine/     Date: 03/08/2007
Signatory's Name: Paul S. Levine
Signatory's Position: Attorney of record

The signatory has confirmed that he/she is either (1) an attorney who is a member in good standing of the bar of the highest court of a U.S. state; or (2) a Canadian attorney/agent who has been granted reciprocal recognition under 37 C.F.R. §10.14(c) by the USPTO's Office of Enrollment and Discipline. He/she further confirms that (1) the applicant has not previously been represented in this matter by an authorized attorney; and (2) he/she is the applicant's attorney or an associate of that attorney.
        
Serial Number: 77001159
Internet Transmission Date: Thu Mar 08 20:59:43 EST 2007
TEAS Stamp: USPTO/ROA-XX.XXX.XX.XXX-2007030820594332
0308-77001159-37035db436114f02d879880483
a87cb455c-N/A-N/A-20070308201233244482