Offc Action Outgoing

RESPONSE TIME LIMIT: TO AVOID ABANDONMENT, THE OFFICE MUST RECEIVE A PROPER RESPONSE TO THIS OFFICE ACTION WITHIN 6 MONTHS OF THE MAILING OR E-MAILING DATE.

MAILING/E-MAILING DATE INFORMATION: If the mailing or e-mailing date of this Office action does not appear above, this information can be obtained by visiting the USPTO website at http://tarr.gov.uspto.report/, inserting the application serial number, and viewing the prosecution history for the mailing date of the most recently issued Office communication.

Serial Number 77/011678

The assigned examining attorney has reviewed the referenced application and determined the following.

NO CONFLICTING MARKS

The examining attorney has searched the Office records and has found no similar registered or pending mark which would bar registration under Trademark Act Section 2(d), 15 U.S.C. §1052(d). TMEP §704.02.

SPECIMEN

Applicant must submit (1) a substitute specimen showing the mark as it is used in commerce on the goods or on packaging for the goods, and (2) a statement that “the substitute specimen was in use in commerce at least as early as the filing date of the application,” verified with a notarized affidavit or a signed declaration under 37 C.F.R. §2.20. 37 C.F.R. §§2.56 and 2.59(a); TMEP §§904.01 et seq. and 904.09.

The current specimen of record comprises what appears to be a printers proof for product packaging and is unacceptable as evidence of actual trademark use because it does not show the mark actually used in commerce on the goods. Examples of acceptable specimens for goods are tags, labels, instruction manuals, containers, photographs that show the mark on the goods or packaging, or displays associated with the goods at their point of sale. TMEP §§904.04 et seq.

For your convenience, the examining attorney includes the following example of the statement supporting use of the substitute specimen supported by an acceptable declaration under 37 C.F.R. Section 2.20.

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 the substitute specimen was in use in commerce at least as early as the filing date of the application; that the facts set forth in this application are true; all statements made of his/her own knowledge are true; and all statements made on information and belief are believed to be true.

_____________________________

(Signature)

_____________________________

(Print or Type Name and Position)

_____________________________

(Date)

Pending an adequate response to the above, registration is refused because the specimen of record does not show use of the proposed mark as a trademark. Trademark Act Sections 1, 2 and 45, 15 U.S.C. §§1051, 1052 and 1127; TMEP §§904.11 and 1202 et seq.

IDENTIFICATION OF GOODS- NOT ACCURATE

The identification of goods is unacceptable because it does not appear to accurately describe the goods. The applicant’s goods appear to be dietary supplements, not a nutritional additive. The applicant must amend the identification to specify the common commercial name of the goods. If there is no common commercial name, the applicant must describe the product and its intended uses. TMEP §1402.01. The applicant may adopt the following identification, if accurate:

Class 5: Dietary and nutritional supplements for human consumption

Please note that, while an application may be amended to clarify or limit the identification, additions to the identification are not permitted. 37 C.F.R. §2.71(a); TMEP §1402.06. Therefore, the applicant may not amend to include any goods that are not within the scope of goods set forth in the present identification.

In addition, the applicant may want to consult The Acceptable Identification of Goods and Services Manual, published by the U.S. Patent and Trademark Office which is available on-line at www.gov.uspto.report/web/offices/tac/doc/gsmanual/. As set forth in the TMEP, this manual "sets out acceptable language for identifying goods and services of various types." TMEP sec. 1402.04.

RESPONSE TO OFFICE ACTION

No set form is required for response to this Office action. The applicant must respond to each point raised. The applicant should simply set forth the required changes or statements and request that the Office enter them. The applicant must sign the response.

Applicants may now respond formally using the Office’s Trademark Electronic Application System (TEAS) at http://www.gov.uspto.report/teas/index.html. When using TEAS the data the applicant submits is directly uploaded into the Office’s database, which reduces the time it takes to process the applicant’s response, while also eliminating the possibility of data entry errors by the Office. Applicants are strongly encouraged to use TEAS to respond to office actions.

PLEASE NOTE: Because it delays processing, submission of duplicate papers is discouraged. Unless specifically requested to do so by the Office, parties should not mail follow up copies of documents transmitted electronically or by fax. TMEP § 306.04; Cf. ITC Entertainment Group Ltd. V. Nintendo of America Inc. 45 USPQ2d 2021 (TTAB 1998).

/Jennifer M. Martin/

Examining Attorney, L.O. 116

(571) 272-9193; (571) 273-9116 (fax)

Jennifer.Martin@uspto.gov

HOW TO RESPOND TO THIS OFFICE ACTION:

ONLINE RESPONSE: You may respond using the Office’s Trademark Electronic Application System (TEAS) Response to Office action form available on our website at http://www.gov.uspto.report/teas/index.html. If the Office action issued via e-mail, you must wait 72 hours after receipt of the Office action to respond via TEAS. NOTE: Do not respond by e-mail. THE USPTO WILL NOT ACCEPT AN E-MAILED RESPONSE.
REGULAR MAIL RESPONSE: To respond by regular mail, your response should be sent to the mailing return address above, and include the serial number, law office number, and examining attorney’s name. NOTE: The filing date of the response will be the date of receipt in the Office, not the postmarked date. To ensure your response is timely, use a certificate of mailing. 37 C.F.R. §2.197.

STATUS OF APPLICATION: To check the status of your application, visit the Office’s Trademark Applications and Registrations Retrieval (TARR) system at http://tarr.uspto.gov.

VIEW APPLICATION DOCUMENTS ONLINE: Documents in the electronic file for pending applications can be viewed and downloaded online at http://portal.gov.uspto.report/external/portal/tow.

GENERAL TRADEMARK INFORMATION: For general information about trademarks, please visit the Office’s website at http://www.gov.uspto.report/main/trademarks.htm

FOR INQUIRIES OR QUESTIONS ABOUT THIS OFFICE ACTION, PLEASE CONTACT THE ASSIGNED EXAMINING ATTORNEY SPECIFIED ABOVE.