UNITED STATES PATENT AND TRADEMARK OFFICE
SERIAL NO: 77/572944
MARK: SWEETWATER
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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: Aquatic Eco-Systems, 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.
THIS REFUSAL APPLIES TO CLASS 007 ONLY
SECTION 2(d) REFUSAL – LIKELIHOOD OF CONFUSION
The following factors are the most relevant: similarity of the marks, similarity of the goods, and similarity of trade channels of the goods. See In re Opus One, Inc., 60 USPQ2d 1812 (TTAB 2001); In re Dakin’s Miniatures Inc., 59 USPQ2d 1593 (TTAB 1999); In re Azteca Rest. Enters., Inc., 50 USPQ2d 1209 (TTAB 1999); TMEP §§1207.01 et seq.
In a likelihood of confusion determination, the marks are compared for similarities in their appearance, sound, meaning or connotation and commercial impression. In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 1361, 177 USPQ 563, 567 (C.C.P.A. 1973); TMEP §1207.01(b). Similarity in any one of these elements may be sufficient to find a likelihood of confusion. In re White Swan Ltd., 8 USPQ2d 1534, 1535 (TTAB 1988); In re Lamson Oil Co., 6 USPQ2d 1041, 1043 (TTAB 1987); see TMEP §1207.01(b).
In the instant case, both applicant’s and registrant’s marks are “SWEETWATER”. Thus, the marks are identical in their appearance, sound, connotation and commercial impression, that there is a likelihood of confusion. Therefore, the similarity prong of the test to determine likelihood of confusion is satisfied.
Comparison of the Goods
The goods of the parties need not be identical or directly competitive to find a likelihood of confusion. See Safety-Kleen Corp. v. Dresser Indus., Inc., 518 F.2d 1399, 1404, 186 USPQ 476, 480 (C.C.P.A. 1975); TMEP §1207.01(a)(i). Rather, they need only be related in some manner, or the conditions surrounding their marketing are such that they would be encountered by the same purchasers under circumstances that would give rise to the mistaken belief that the goods come from a common source. In re Total Quality Group, Inc., 51 USPQ2d 1474, 1476 (TTAB 1999); TMEP §1207.01(a)(i); see, e.g., On-line Careline Inc. v. Am. Online Inc., 229 F.3d 1080, 1086-87, 56 USPQ2d 1471, 1475-76 (Fed. Cir. 2000); In re Martin’s Famous Pastry Shoppe, Inc., 748 F.2d 1565, 1566-68, 223 USPQ 1289, 1290 (Fed. Cir. 1984).
Based on the aforementioned standard, the applicant’s goods are closely related to the registrant’s goods because they could be marketed and sold together and/or in the same channels of trade. Specifically, the applicant’s goods, in part, are for “Blower packages used to provide air to sponge filters air diffusers undergravel filters and protein skimmers; Centrifugal pumps; Diffusers for air diffusion into water; Epoxy primers; High efficiency pumps; Linear air pumps; Magnetic drive pumps; Muffler assemblies; Piston Air Compressors used to aerate small ponds or deep water applications; Pond filters; Regenerative blowers.”
The registrant’s goods are for “filters for domestic use, for purifying potable water.” Both applicant’s and registrant’s goods include products, such as pumps and filters, that are used for purifying water.
Accordingly, because confusion as to source is likely, registration is refused under Trademark Act Section 2(d) based on a likelihood of confusion.
Although applicant’s mark has been refused registration, applicant may respond to the refusal by submitting evidence and arguments in support of registration.
Applicant must respond to the requirement set forth below.
Identification of Goods
Applicant submitted the following identification of goods:
Class 002: Epoxy paint gel and concrete sealers
Class 007: Blower packages used to provide air to sponge filters air diffusers undergravel filters and protein skimmers; Centrifugal pumps; Diffusers for air diffusion into water; Epoxy primers; High efficiency pumps; Linear air pumps; Magnetic drive pumps; Muffler assemblies; Piston Air Compressors used to aerate small ponds or deep water applications; Pond filters; Regenerative blowers
Class 011: De-icing system for ponds and lakes
Applicant may adopt any or all of the following wording, if accurate:
Class 001: Epoxy coatings for use on concrete industrial floors; and/or
Class 002: Epoxy paint gel; epoxy primers; and/or
Class 007: High-pressure pumps for washing appliances and installations; Linear compressed air pumps; Magnetic drive pumps; Muffler assemblies, namely, engine mufflers; Pond and water garden aeration systems comprising piston air compressors used to aerate small ponds or deep water applications; Regenerative power operated blowers; and/or
Class 009: High-pressure pumps for proportioning and testing purposes; and/or
Class 011: Diffusers for air diffusion into water; Pond water filters; and/or
Class 019: Floor patching materials, namely, concrete sealers
For assistance with identifying and classifying goods and/or services in trademark applications, please see the online searchable Manual of Acceptable Identifications of Goods and Services at http://tess2.gov.uspto.report/netahtml/tidm.html. See TMEP §1402.04.
If applicant prosecutes this application as a multiple-class application, then applicant must comply with each of the requirements below for those goods based on actual use in commerce under Trademark Act Section 1(a):
(1) Applicant must list the goods by international class;
(2) Applicant must submit a filing fee for each international class of goods not covered by the fee already paid (current fee information should be confirmed at http://www.uspto.gov); and
(3) For each additional international class of goods, applicant must submit:
a. Dates of first use of the mark anywhere and dates of first use of the mark in commerce, or a statement that the dates of use in the initial application apply to that class; and the dates of use, both anywhere and in commerce, must be at least as early as the filing date of the application;
b. One specimen showing use of the mark for each class of goods; and the specimen must have been in use in commerce at least as early as the filing date of the application. If a single specimen supports multiple classes, applicant should indicate which classes the specimen supports rather than providing multiple copies of the same specimen;
c. A statement that “the specimen was in use in commerce on or in connection with the goods listed in the application at least as early as the filing date of the application;” and
d. Verification of the statements in 3(a) and 3(c) (above) in an affidavit or a signed declaration under 37 C.F.R. §§2.20, 2.33. Verification is not required where (1) the dates of use for the added class are stated to be the same as the dates of use specified in the initial application, and (2) the original specimens are acceptable for the added classes.
See 37 C.F.R. §§2.34(a)(1), 2.71(c), 2.86(a); TMEP §§1403.01, 1403.02(c).
The specimens of record are acceptable for International Classes 001, 002, 007, 009, 011 and 019 only.
If applicant has questions about its application or needs assistance in responding to this Office action, please telephone the assigned trademark examining attorney.
/tfrazier/
Tamara G. Frazier
Trademark Examining Attorney
Law Office 116
Phone: (571) 272-8256
Fax: (571) 273-8256
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.