Post Publication Amendment

PTO Form 1771 (Rev 9/2005)

OMB No. 0651-0050 (Exp. 04/30/2011)

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PTO Form 1771 (Rev 9/2005)

OMB No. 0651-0050 (Exp. 04/30/2011)

Post-Publication Amendment

To the Commissioner for Trademarks:

Application serial no. 77103942 has been amended as follows:

EXPLANATION OF FILING
Applicant submits herewith a substitute specimen in response to the Office Action dated 8/29/2008

CLASSIFICATION AND LISTING OF GOODS/SERVICES
Applicant proposes to amend the following class of goods/services in the application:
Current: Class 008 for Knives
Original Filing Basis:
Filing Basis: Section 1(b), Intent to Use: The applicant has 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. (15 U.S.C. Section 1051(b)).

In International Class 008, the mark was first used at least as early as 01/11/2007 and first used in commerce at least as early as 01/11/2007.

Proposed: Class 008 for Knives
Filing Basis: Section 1(b), Intent to Use: The applicant has 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. (15 U.S.C. Section 1051(b)).

In International Class 008, the mark was first used at least as early as 01/11/2007. and first used in commerce at least as early as 01/11/2007.

Applicant hereby submits a new specimen for Class 008. The specimen(s) submitted consists of An online catalog listing two XRAY brand knives..
For an application based on 1(b), Intent-to-Use, "The substitute specimen(s) was in use in commerce prior to the filing of the Amendment to Allege Use (AAU)."
Original PDF file:
SPU0-6524916318-113509211_._XRAYSUBSTITUTESPEC.pdf
Converted PDF file(s) (2 pages)
Specimen File1
Specimen File2

ADDITIONAL STATEMENTS
DRAWING AND SPECIMEN AGREEMENT The XRAY mark on the substitute specimen is substantially identical to the drawing submitted from the perspective of the viewing public. The numerical designation "14-" is not part of the trademark. Rather, it designates a model number of the particular knife. The consuming public, including a reasonably prudent purchaser, would look at the substitute specimen and understand that they are viewing an XRAY brand knife by Ontario Knife Company. The "14-" that precedes the designation of source, XRAY would be understood as a model number and not a designation of source or part of the trademark. If XRAY were preceded by a "13-" or a "15-", it would not communicate to the reasonably prudent purchaser that the manufacturer or source of the product had changed. Thus, the substitute specimen is acceptable because it shows "XRAY" used in interstate commerce as a designation of source and is identical to the drawing for the trademark application. SPECIMEN REQUIREMENT - ADVERTISING MATERIAL NOT ACCEPTABLE TO SHOW USE FOR GOODS Applicant has provided a substitute specimen from an online catalog. The online catalog shows XRAY knifes being offered for sale, price information, a description of the knife, and an "ADD TO CART" button directing the purchaser to a location where the knife can be purchased through the internet. The substitute specimen is clearly not an advertisement, but is a use of the mark, XRAY in interstate commerce. Applicant believes that the trademark specimen is acceptable and respectfully requests registration of the mark on the principal register.

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 or services listed in the application as of the application filing date. 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. 244. 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: /paul t lavoie/      Date: 03/02/2009
Signatory's Name: Paul T. Lavoie
Signatory's Position: Attorney of Record, TX Bar Member


Signature: /paul t lavoie/     Date: 03/02/2009
Signatory's Name: Paul T. Lavoie
Signatory's Position: Attorney of Record, TX Bar Member

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: 77103942
Internet Transmission Date: Mon Mar 02 12:03:51 EST 2009
TEAS Stamp: USPTO/PPA-XX.XXX.XXX.XX-2009030212035123
9531-77103942-440241e874e8f23766df8f4c80
c16acb55-N/A-N/A-20090302113509211896