| To: | Isaac, David (Libraking11203@yahoo.com) |
| Subject: | TRADEMARK APPLICATION NO. 77113399 - AUGPOINT. - N/A |
| Sent: | 8/21/2007 3:46:19 PM |
| Sent As: | ECOM106@USPTO.GOV |
| Attachments: |
UNITED STATES PATENT AND TRADEMARK OFFICE
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SERIAL NO: 77/113399
MARK: AUGPOINT.
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CORRESPONDENT ADDRESS: |
RESPOND TO THIS ACTION: http://www.gov.uspto.report/teas/eTEASpageD.htm
GENERAL TRADEMARK INFORMATION: http://www.gov.uspto.report/main/trademarks.htm
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APPLICANT: Isaac, David
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CORRESPONDENT’S REFERENCE/DOCKET NO: CORRESPONDENT E-MAIL ADDRESS: |
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TO AVOID ABANDONMENT, THE OFFICE MUST RECEIVE A PROPER RESPONSE TO THIS OFFICE ACTION WITHIN 6 MONTHS OF THE ISSUE/MAILING DATE.
ISSUE/MAILING DATE: 8/21/2007
This letter responds to applicant’s communication filed on June 8, 2007 in which applicant provides a new drawing, provides a color claim, and clarifies the entity designation. The requirement for entity clarification is withdrawn. Further, the requirements for a new drawing and color clarification are maintained.
The assigned trademark examining attorney has reviewed the referenced application and has determined the following:
The proposed amendment of the drawing is unacceptable because it would materially alter the essence or character of the mark. 37 C.F.R. §2.72; TMEP §§807.14 et seq. See In re Who? Vision Systems, Inc., 57 USPQ2d 1211 (TTAB 2000) (amendment from TACILESENSE to TACTILESENSE found to be material alteration); In re CTB Inc., 52 USPQ2d 1471 (TTAB 1999) (proposed amendment of “TURBO AND DESIGN” to typed word “TURBO” is material alteration); In re Meditech International Corp., 25 USPQ2d 1159, 1160 (TTAB 1990) (“[a] drawing consisting of a single blue star, as well as a drawing consisting of a number of blue stars, would both be considered material alterations vis-à-vis a drawing consisting of the typed words ‘DESIGN OF BLUE STAR’”); In re Wine Society of America Inc., 12 USPQ2d 1139 (TTAB 1989) (proposed amendment to replace typed drawing of “THE WINE SOCIETY OF AMERICA” with a special form drawing including those words with a crown design and a banner design bearing the words “IN VINO VERITAS” held to be a material alteration); In re Nationwide Industries Inc., 6 USPQ2d 1882 (TTAB 1988) (addition of house mark “SNAP” to product mark “RUST BUSTER” held a material alteration).
The mark in a drawing cannot be amended if the change would materially alter the mark. TMEP §807.14. The Office determines whether a proposed amendment materially alters a mark by comparing the proposed amendment with the drawing of the mark filed with the original application. 37 C.F.R. §2.72; TMEP §807.14(c).
If republication of the amended mark would be necessary in order to provide proper notice to third parties for opposition purposes, then the mark has been materially altered and the amendment is not permitted. In re Who? Vision Systems Inc., 57 USPQ2d 1211, 1218 (TTAB 2000). “The modified mark must contain the essence of the original mark, and the new form must create the impression of being essentially the same mark.” Visa International Service Association v. Life Code Systems, Inc., 220 USPQ 740, 743 (TTAB 1983). “That is, the new and old forms of the mark must create essentially the same commercial impression.” In re Nationwide Industries Inc., 6 USPQ2d 1882, 1885 (TTAB 1988).
In the present case, the new drawing differs from the original drawing in the presentation of the letters and the addition of a rectangular box design.
As stated in the June 14, 2007 Office action, the drawing is not acceptable because it is a photocopy of the mark that does not create a high quality image when reproduced. A clear drawing of the mark is an application requirement. 37 C.F.R. §2.52. Applicant should simply submit a clearer version of the original drawing and not submit different marks altogether.
Therefore, applicant must submit a new drawing showing a clear depiction of the mark; all lines must be clean, sharp and solid, and not fine or crowded. 37 C.F.R. §§2.52, 2.53(c) and 2.54(e).
If applicant submits a new drawing in the form of a digitized image, it must be in JPG format. The Office recommends that the digitized image have a length and width no smaller than 250 pixels and no larger than 944 pixels. 37 C.F.R. §2.53(c); TMEP §807.05(c).
Amendments or changes to the applied-for mark in a substitute drawing will not be accepted if the changes would materially alter the mark. 37 C.F.R. §2.72; TMEP §807.14.
As stated in the June 14, 2007 Office action, the drawing shows the mark in black and white and the application claims color as a feature of the mark but fails to show the applied-for mark in color. 37 C.F.R. §2.52(b)(1). However, all applications for marks claiming color must provide a drawing showing the mark in color.
Therefore, applicant must satisfy one of the following:
(1) Submit a substitute drawing showing the mark in color, with a statement listing all the colors claimed as a feature of the mark, and a separate statement describing where the colors appear in the mark. The following format is suggested: “The colors [specify] are claimed as a feature of the mark. The color [name of color] appears in the wording [indicate wording, as appropriate] and the color appears in the design [identify design element as appropriate].”
(2) Submit a substitute drawing showing the mark in black and white; and a statement authorizing deletion of the statement claiming color as a feature of the mark. Color is not material to the commercial impression of the mark and can be deleted from the drawing of the mark. 37 C.F.R. §2.72; TMEP §§807.07(d) and 807.14 et seq.
Essentially, if applicant’s mark is always supposed to be presented in specific colors, then applicant’s drawing needs to be submitted in those specific colors. In the present case, applicant claims “ red, orange, yellow, green, blue, indigo, violet, black, white, and gray is/are claimed as a feature of the mark.” If the color claim is correct, then applicant’s drawing should show the aforementioned colors and applicant should provide a statement of the precise location where “red, orange, yellow, green, blue, indigo, violet, black, white, and gray” can be found on the mark. Otherwise, color is not material and applicant should delete the color claim.
If applicant has questions about its application or needs assistance in responding to this Office action, please call the assigned trademark examining attorney directly at the number below.
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. Please note that all electronic communications must be signed using the "/name/" format. TMEP section 804.05.
Applicants are strongly encouraged to use TEAS to respond to office actions.
To expedite prosecution of this application, applicant is encouraged to file its response to this Office action through the Trademark Electronic Application System (TEAS), available at http://www.gov.uspto.report/teas/index.html.
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).
TEAS PLUS APPLICANTS MUST SUBMIT DOCUMENTS ELECTRONICALLY OR SUBMIT FEE: TEAS Plus applicants should submit the following documents using the Trademark Electronic Application System (TEAS) at http://www.gov.uspto.report/teas/index.html: (1) written responses to Office actions; (2) preliminary amendments; (3) changes of correspondence address; (4) changes of owner’s address; (5) appointments and revocations of attorney; (6) amendments to allege use; (7) statements of use; (8) requests for extension of time to file a statement of use, and (9) requests to delete a §1(b) basis. If any of these documents are filed on paper, they must be accompanied by a $50 per class fee. 37 C.F.R. §§2.6(a)(1)(iv) and 2.23(a)(i). Telephone responses will not incur an additional fee. NOTE: In addition to the above, applicant must also continue to accept correspondence from the Office via e-mail throughout the examination process in order to avoid the additional fee. 37 C.F.R. §2.23(a)(2).
/Bernice Middleton/
Bernice Middleton
Trademark Examining Attorney
Law Office 106
bernice.middleton@uspto.gov
Fax No: (571) 273-9106
RESPOND TO THIS ACTION: If there are any questions about the Office action, please contact the assigned examining attorney. A response to this Office Action should be filed using the Office’s Response to Office action form available at http://www.gov.uspto.report/teas/eTEASpageD.htm. If notification of this Office action was received via e-mail, no response using this form may be filed for 72 hours after receipt of the notification. Do not attempt to respond by e-mail as the USPTO does not accept e-mailed responses.
If responding by paper mail, please include the following information: the application serial number, the mark, the filing date and the name, title/position, telephone number and e-mail address of the person signing the response. Please use the following address: Commissioner for Trademarks, P.O. Box 1451, Alexandria, VA 22313-1451.
STATUS CHECK: Check the status of the application at least once every six months from the initial filing date using the USPTO Trademark Applications and Registrations Retrieval (TARR) online system at http://tarr.uspto.gov. When conducting an online status check, print and maintain a copy of the complete TARR screen. If the status of your application has not changed for more than six months, please contact the assigned examining attorney.