To: | Homer TLC, Inc. (trade_marks@homedepot.com) |
Subject: | U.S. TRADEMARK APPLICATION NO. 77313630 - ALTURA - N/A |
Sent: | 5/13/2010 8:51:40 AM |
Sent As: | ECOM117@USPTO.GOV |
Attachments: |
UNITED STATES PATENT AND TRADEMARK OFFICE
SERIAL NO: 77/313630
MARK: ALTURA
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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: Homer TLC, Inc.
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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: 5/13/2010
The statement of use has been reviewed by the assigned trademark examining attorney. Applicant must respond timely and completely to the issue(s) below. 15 U.S.C. §1062(b); 37 C.F.R. §§2.62(a), 2.65(a); TMEP §§711, 718.03.
Specimen Not Acceptable – Printer’s Proof
The specimen is not acceptable because it is a printer’s proof and thus does not show the applied-for mark in use in commerce. Printer’s proofs are printed materials in draft form used for making corrections before a final print run. As such, they are not disseminated to the public and do not show use of the mark in the ordinary course of trade on the actual goods that are sold or transported in commerce. See In re The Signal Cos., 228 USPQ 956, 957-58 n.4 (TTAB 1986); TMEP §§904.04(a), 904.07(a).
Trademark Act Section 45 requires that the mark be in “use in commerce” and defines such term to mean “the bona fide use of a mark in the ordinary course of trade.” 15 U.S.C. §1127. A mark is used in commerce in relation to goods when it is used on the goods, containers for the goods, displays associated with the goods or tags or labels affixed to the goods, and the goods are sold or transported in commerce. 15 U.S.C. §1127; TMEP §901.01; see 37 C.F.R. §2.56(b)(1).
A statement of use must include a specimen showing the applied-for mark in use in commerce for each class of goods specified in the statement of use. Trademark Act Sections 1 and 45, 15 U.S.C. §§1051, 1127; 37 C.F.R. §§2.56(a), 2.88(b)(2); TMEP §§904, 1109.09(b).
Therefore, applicant must submit the following:
(1) A substitute specimen showing the mark in use in commerce for each class of goods specified in the statement of use; and
(2) The following statement, verified with an affidavit or signed declaration under 37 C.F.R. §2.20: “The substitute specimen was in use in commerce prior to the expiration of the deadline for filing the statement of use.” 37 C.F.R. §2.59(b)(2); TMEP §904.05; see 37 C.F.R. §2.193(e)(1). If submitting a substitute specimen requires an amendment to the dates of use, applicant must also verify the amended dates. 37 C.F.R. §2.71(c); TMEP §904.05.
Examples of specimens for goods are tags, labels, instruction manuals, containers, photographs that show the mark on the actual goods or packaging, or displays associated with the actual goods at their point of sale. See TMEP §§904.03 et seq.
Pending receipt of a proper response, registration is refused because the specimen does not show the applied-for mark in use in commerce as a trademark. Trademark Act Sections 1 and 45, 15 U.S.C. §§1051, 1127; 37 C.F.R. §§2.56(a), 2.88(b)(2); TMEP §§904, 904.07(a).
Applicant may not withdraw the statement of use. 37 C.F.R. §2.88(g); TMEP §1109.17.
Response Options:
If applicant responds to this Office action online via the Trademark Electronic Application System (TEAS), applicant should provide a substitute specimen as follows: (1) answer “yes” to the TEAS response form wizard question to “submit a new or substitute specimen;” (2) attach a jpg or pdf file of the substitute specimen; (3) select the statement that “The substitute specimen(s) was in use in commerce prior to the expiration of the deadline for filing the statement of use.”; and (4) sign personally or enter personally his/her electronic signature and date after the declaration at the end of the TEAS response form. See 37 C.F.R. §§2.59(b)(2), 2.193(a), (c)-(d), (e)(1); TMEP §§611.01(c), 804.01(b). Please note that these steps appear on different pages of the TEAS response form.
If applicant experiences difficulty in submitting the required substitute specimen, supporting statement and/or declaration, please e-mail TEAS@uspto.gov for technical assistance regarding the TEAS response form.
If applicant responds to this Office action on paper, via regular mail, applicant may provide a verified substitute specimen by personally signing and dating the declaration below, and submitting a substitute specimen showing the applied-for mark in use in commerce. See 37 C.F.R. §§2.20, 2.59(b)(2), 2.193(a)(1), (d), (e)(1); TMEP §§804.01(b), 904.05.
The undersigned being warned that willful false statements and the like are punishable by fine or imprisonment, or both, under 18 U.S.C. §1001, and that such willful false statements and the like may jeopardize the validity of the application or document or any registration resulting therefrom, declares that the substitute specimen was in use in commerce prior to the expiration of the deadline for filing the statement of use; 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)
/DB/
Daniel Brody
Acting Managing Attorney
Law Office 117
U.S. Patent and Trademark Office
(571) 272-9724
RESPOND TO THIS ACTION: Applicant should file a response to this Office action online using the form at http://www.gov.uspto.report/teas/eTEASpageD.htm, waiting 48-72 hours if applicant received notification of the Office action via e-mail. For technical assistance with the form, please e-mail TEAS@uspto.gov. For questions about the Office action itself, please contact the assigned examining attorney. Do not respond to this Office action by e-mail; 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.