UNITED STATES PATENT AND TRADEMARK OFFICE

 

 

 

OFFICE ACTION

 

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: 11/21/2007

 

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).

 

This letter responds to the communication filed on October 31, 2007.  Please note that all issues not discussed in this office action have been resolved.  The examining attorney maintains and continues the §2(d) refusal and the drawing requirement.  The examining attorney issues this action because of a new issue raised in the applicant’s response.

 

Disclaimer

Applicant has disclaimed the entire applied-for mark.  However, an entire mark may not be disclaimed.  15 U.S.C. §1056(a); See In re Dena Corp. v. Belvedere International Inc., 950 F.2d 1555, 1560, 21 USPQ2d 1047, 1051 (Fed. Cir. 1991); In re JT Tobacconists, 59 USPQ2d 1080, 1081 n.1 (TTAB 2001); In re Anchor Hocking Corp., 223 USPQ 85 (TTAB 1984).  If the applied-for mark is not registrable as a whole, a disclaimer will not make it registrable.  TMEP §1213.06. 

 

Therefore, applicant must withdraw the disclaimer of the wording MUSCLE as no disclaimer of the word MUSCLE is required.  The applicant may adopt the following statement if accurate:  The applicant withdraws the disclaimer of the word MUSCLE.

 

Helpful Information

The following information applies only if the applicant chooses to respond to the Office action.  There is no required format or form for responding to this Office action.  The response should address each refusal and/or requirement raised in the Office action.  If a refusal has issued, applicant may wish to argue against the refusal, i.e., submit arguments and/or evidence as to why the refusal should be withdrawn and why the mark should register.  To respond to requirements, applicant should simply set forth in writing the required changes or statements and request that the Office enter them into the application record. 

 

The Office recommends applicants use the Trademark Electronic Application System (TEAS) to respond to Office actions online at http://www.gov.uspto.report/teas/index.html.  If needed, the applicant should call the Trademark Assistance Center (TAC) for help in using TEAS.  TAC may be reached at (571) 272-9250 or (800) 786-9199.  TAC is open from 8:30 a.m. to 8:00 p.m. Eastern Standard Time, Monday through Friday, except on federal holidays. 

 

The response must be signed by applicant or someone with legal authority to bind applicant (i.e., a corporate officer of a corporate applicant, the equivalent of an officer for unincorporated organizations or limited liability company applicants, a general partner of a partnership applicant, each applicant for applications with multiple individual applicants, etc.).  TMEP §§712 et seq.  This means that the person that originally signed the verification for the application may not be entitled to sign the response.

 

Please note that in order to properly “sign” a TEAS form, applicant can either (1) choose an electronic signature consisting of any combination of letters, numbers, spaces and/or punctuation marks, preceded and followed by the forward slash symbol (/) (e.g., /john doe/), and enter this in the signature block on the TEAS form, or (2) attach a JPG or PDF image of a declaration under 37 C.F.R. §2.20, together with a pen-and-ink signature.  37 C.F.R. §2.193(c)(1)(iii); TMEP §804.05.

 

If applicant responds on paper via regular mail or facsimile transmission [not necessary if the correspondence is filed electronically via TEAS], the response should include the following information:  (1) the name and law office number of the examining attorney; (2) the serial number of this application; (3) the mailing date of this Office action; and (4) applicant's telephone number.

 

The following legal authorities govern the processing of trademark and service mark applications by the Office:  The Trademark Act, 15 U.S.C. §§1051 et seq.; the Trademark Rules of Practice, 37 C.F.R. Part 2; and the Office’s Trademark Manual of Examining Procedure (TMEP) (5th ed., 2007), available on the United States Patent and Trademark Office web site at http://www.gov.uspto.report/main/trademarks.htm.  The TMEP is a detailed guidebook written by the Office to explain the laws and procedures that govern the trademark and service mark application, registration, and post registration processes.  Please note that this “Office action” will give references to the TMEP, e.g., TMEP §904.04.  The applicant should refer to the cited section of the TMEP for information regarding the specific issue raised.

 

Applicant may wish to hire a specialist attorney to assist in prosecuting this application because of the technicalities involved.  The Office cannot aid in the selection of a trademark attorney.  37 C.F.R. §2.11.  Applicant may wish to consult the Yellow Pages for a listing of attorneys specializing in trademark or intellectual property law, or seek guidance from its local Bar Association attorney-referral service.

 

Status Check

The Trademark Applications and Registrations Retrieval (TARR) database on the USPTO website at http://tarr.uspto.gov provides detailed, up to the minute information about the status and prosecution history of trademark applications and registrations.  Please note that an application serial number or registration number is needed to be able to access this database.  TARR is available 24 hours a day, 7 days a week.  If additional information regarding the status of an application or registration is required, callers may telephone the Trademark Assistance Center (TAC) at (571) 272-9250 or (800) 786-9199 and request a status check.  TAC is open from 8:30 a.m. to 8:00 p.m. Eastern Standard Time, Monday through Friday, except on holidays.

 

Copies of Documents 

The applicant may view and download any or all documents contained in the electronic file wrapper of all pending trademark applications, as well as many registrations via the Trademark Document Retrieval (TDR) system available online at: http://portal.gov.uspto.report/external/portal/tow.  Currently, you can access all pending applications and all Madrid Protocol filings, and also many registrations, via TDR.  The USPTO is in the process of converting all remaining registrations into a digital format, to permit future TDR access.  This conversion process is expected to take several years.

 

Questions About This Action

If the applicant has any questions regarding this Office action, please call the examining attorney.

 

/Brian Pino/

Examining Attorney

Law Office 114

571.272.9209

571.273.9114 Law Office Facsimile

 

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 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.

 

 

 

 

                                                                

IMPORTANT NOTICE

USPTO OFFICE ACTION HAS ISSUED ON 11/21/2007 FOR

APPLICATION SERIAL NO. 77116089

 

Please follow the instructions below to continue the prosecution of your application:

  

VIEW OFFICE ACTION: Click on this link http://portal.gov.uspto.report/external/portal/tow?DDA=Y&serial_number=77116089&doc_type=OOA&mail_date=20071121 (or copy and paste this URL into the address field of your browser), or visit http://portal.gov.uspto.report/external/portal/tow and enter the application serial number to access the Office action.

 

PLEASE NOTE: The Office action may not be immediately available but will be viewable within 24 hours of this notification.

 

RESPONSE MAY BE REQUIRED: You should carefully review the Office action to determine (1) if a response is required; (2) how to respond; and (3) the applicable response time period. Your response deadline will be calculated from 11/21/2007.

 

Do NOT hit “Reply” to this e-mail notification, or otherwise attempt to e-mail your response, as the USPTO does NOT accept e-mailed responses.  Instead, the USPTO recommends that you respond online using the Trademark Electronic Application System response form at http://www.gov.uspto.report/teas/eTEASpageD.htm.

 

HELP: For technical assistance in accessing the Office action, please e-mail

TDR@uspto.gov.  Please contact the assigned examining attorney with questions about the Office action. 

 

        WARNING

1. The USPTO will NOT send a separate e-mail with the Office action attached.

 

2. Failure to file any required response by the applicable deadline will result in the ABANDONMENT of your application.