Response to Office Action

PTO Form 1957 (Rev 9/2005)

OMB No. 0651-0050 (Exp. 04/2009)

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PTO Form 1957 (Rev 9/2005)

OMB No. 0651-0050 (Exp. 04/2009)

Response to Office Action

To the Commissioner for Trademarks:

Application serial no. 77382626 has been amended as follows:

ARGUMENT(S)
In response to the substantive refusal(s), please note the following:

The Examining Attorney has refused registration of the applied-for mark because of a likelihood of confusion with the mark in U.S. Registration No. 2571184.  In reaching this conclusion, the Examining Attorney states that in a word plus design mark, the word portion is normally accorded greater weight when assessing likelihood of confusion.  Applicant respectfully submits that in this instance, the inclusion of a design overcomes the similarity with the registered mark.  The term "Smokehouse" is widely and commonly used in conjunction with goods and services related to barbeques and grills.  For example, a search for "Smokehouse" in the US Trademark database returns 203 records that indicate the use of "Smokehouse" in a mark.  Similarly, a Internet search using Google for "Smokehouse" in conjunction with barbeque or grills returns hundreds of thousands of results.  Accordingly, Applicant respectfully submits that customers are used to seeing "Smokehouse" used in conjunction with many different products and services having varying sources.  Therefore, given the ubiquity of the use of the term, the inclusion of a design with Applicant's mark is sufficient to prevent a likelihood of confusion with U.S. Registration No. 2571184.  Applicant respectfully requests that the Examining Attorney reconsider and withdraw the rejection.


ADDITIONAL STATEMENTS
The Examining Attorney has required that Applicant submit a substitute specimen because the mark on the specimen disagrees with the mark on the drawing. . The Examining Attorney states "the specimen displays the mark as SMOKEHOUSE, while the drawing shows the mark as SMOKEHOSUE and design." Applicant has reviewed the application as filed and does not see the disagreement noted by the Examining Attorney. The filed specimens all depict products having the logo together with the word "SMOKEHOUSE." Similarly, the drawing filed Jan. 28, 2008 shows the logo and the word "SMOKEHOUSE." In a review of the application status from the TARR portal of the USPTO, the mark also shows the logo and the word "SMOKEHOUSE" and the words only field correctly reports "SMOKEHOUSE." Applicant can find no instance in the application as filed of the term "SMOKEHOSUE." Even if that term does exist, Applicant respectfully submits that it is clearly a typographical error and that the relevant sections of the application correctly identify the mark as the design and "SMOKEHOUSE."

SIGNATURE(S)
Declaration Signature
If the applicant is seeking registration under Section 1(b) and/or Section 44 of the Trademark Act, the applicant 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). 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). 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: /Nathan Koenig/      Date: 10/23/2008
Signatory's Name: Nathan Koenig
Signatory's Position: Attorney of record

Response Signature
Signature: /Nathan Koenig/     Date: 10/23/2008
Signatory's Name: Nathan Koenig
Signatory's Position: Attorney of record

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: 77382626
Internet Transmission Date: Thu Oct 23 13:54:44 EDT 2008
TEAS Stamp: USPTO/ROA-XX.XX.XXX.XX-20081023135444233
755-77382626-43081bf5f5fcf97af225c02c576
3257b0-N/A-N/A-20081023132459273699