TEAS Petition to Revive Abandon Applic

PTO Form 2194 (Rev 9/2005)

OMB No. 0651-0054 (Exp. 11/30/2008)

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PTO Form 2194 (Rev 9/2005)

OMB No. 0651-0054 (Exp. 11/30/2008)

Petition To Revive For Office Action

To the Commissioner for Trademarks:

Application serial no. 77002786 has been amended as follows:
PETITION
Petition Statement

Applicant has firsthand knowledge that the failure to respond to the Office Action by the specified deadline was unintentional, and requests the USPTO to revive the abandoned application.

RESPONSE TO OFFICE ACTION

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


The examining attorney has refused registration of our proposed mark based upon Section 2(d) Likelihood of Confusion with respect to the mark in U.S. Registration No. 2887115  PIANOAMERICA owned by Make Music L.L.C.

We have researched this mark PIANOAMERICA and its owner Make Music L.L.C. a Kansas limited liability company.   PIANOAMERICA was a single retail store selling digital (electric) pianos.   This single retail location closed in 2004 and has never reopened.  The telephone number is disconnected with no forwarding number.  All emails are returned unreceived.   The mark has been abandoned through lack of use in commerce for more than 3 years. 

Additionally, the Secretary of State in Kansas shows this L.L.C. filed its last annual report in 2004, therefore this entity – Make Music L.L.C. no longer exists – the L.L.C. has been forfeited.
See:  http://www.accesskansas.org/srv-corporations/compressedSearch.do

As shown in our specimen originally submitted with our application, our proposed mark AMERICA’S PIANO is used as a service mark on goods distributed nationally – KIMBALL brand pianos.   Before it was abandoned, PIANOAMERICA was simply the name of a single small retail piano store located in a strip mall in Lawrence, Kansas.   The mark was never used on goods; it was the name of a piano store.  Therefore, the comparison of the Goods and Services is actually quite different.  No confusion could possibly exist between a nationally known piano brand (KIMBALL) and a single retail storefront.   There is a completely different meaning and commercial impression.
See:   http://www.pianoamerica.com/map.html

Therefore, for the reasons listed above, we respectfully request the Examining Attorney allow our application to pass on for registration. 

Respectfully,

/Edward F. Richards/
Edward F. Richards, President
Brighton Music, Inc.

CLASSIFICATION AND LISTING OF GOODS/SERVICES
Applicant proposes to amend the following class of goods/services in the application:
Current: Class 015 for Musical instruments, namely pianos of all kinds-- grand pianos, upright pianos, digital pianos, electric keyboards, player pianos, and their parts
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 01/20/2005 and first used in commerce at least as early as 01/23/2005, and is now in use in such commerce.

Proposed: Class 015 for Musical instruments, namely pianos of all kinds - grand pianos, upright pianos, digital pianos, electric keyboards, player pianos.
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 01/20/2005 and first used in commerce at least as early as 01/23/2005, and is now in use in such commerce.
ADDITIONAL STATEMENTS
Disclaimer
"No claim is made to the exclusive right to use "PIANO" apart from the mark as shown."

FEE(S)
Fee(s) in the amount of $100 is being submitted.

SIGNATURE(S)
Petition/Response Signature
Signature: /Edward F. Richards/     Date: 11/13/2007
Signatory's Name: Edward F. Richards
Signatory's Position: President

The signatory has confirmed that he/she is not represented by either an authorized attorney or Canadian attorney/agent, and that he/she is either (1) the applicant or (2) a person(s) with legal authority to bind the applicant; and if an authorized U.S. attorney or Canadian attorney/agent previously represented him/her in this matter, either he/she has filed a signed revocation of power of attorney with the USPTO or the USPTO has granted the request of his/her prior representative to withdraw.

        
RAM Sale Number: 4117
RAM Accounting Date: 11/14/2007
        
Serial Number: 77002786
Internet Transmission Date: Tue Nov 13 20:23:01 EST 2007
TEAS Stamp: USPTO/POA-XX.XX.XX.XXX-20071113202301164
064-77002786-400c592269d184885daaa9d7508
75e5bc7-CC-4117-20071113201131923615