Response to Office Action

PTO Form 1957 (Rev 9/2005)

OMB No. 0651-0050 (Exp. 04/30/2011)

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PTO Form 1957 (Rev 9/2005)

OMB No. 0651-0050 (Exp. 04/30/2011)

Response to Office Action

To the Commissioner for Trademarks:

Application serial no. 77666444 has been amended as follows:

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

BioAir Solutions, LLC is using its EcoGrow product with the operation of its EcoFilter, EcoPure and EcoPure Mini air cleaning and odor control technologies/products.  The EcoFilter, EcoPure and EcoPure Mini products are biological odor control systems that require nutrients for effective and efficient operation.  In order to help the microorganisms grow well inside the air cleaning products, we use EcoGrow nutrients that is continuously added to the system while operating.

I am including a photo of the EcoGrow nutrients that is standing next to a BioAir’s EcoPure odor control system as it is used in field (in commerce), and I am also including an updated photo of the EcoGrow container.  The label on the container shows that the EcoGrow product is used for the operation of the EcoFilter, EcoPure and EcoPure Mini products.

Please let me know if this new substitute specimen is acceptable, or if there is anything else that we should do in order to satisfy the USPTO requirements for this application.  I had left Mr. Michael Engel  a voice mail today to discuss this application, but in the interest of filing this substitute specimen in time, I have decided to proceed with this filing.

Thank you.

EVIDENCE

Original PDF file:
evi_7495160177-143329202_._EcoGrow_Label.pdf
Converted PDF file(s) (1 page)
Evidence-1
Original PDF file:
evi_7495160177-143329202_._EcoGrow_EcoPure_Odor_Control_System.pdf
Converted PDF file(s) (1 page)
Evidence-1
Original PDF file:
evi_7495160177-143329202_._EcoGrow_77666444_SOU_Affidavit_101022.pdf
Converted PDF file(s) (1 page)
Evidence-1

CLASSIFICATION AND LISTING OF GOODS/SERVICES
Applicant proposes to amend the following class of goods/services in the application:
Current: Class 011 for Air cleaning units; Air filtering installations; Air filters for industrial installations; Air purification units; Air purifiers; Air purifying apparatus; Air purifying apparatus and machines; Air purifying units for municipal and industrial odor and air emissions control use; Industrial air purifiers; Separators for the cleaning and purification of air
Original Filing Basis:
Filing Basis: Section 1(b), Intent to Use: The applicant has 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. (15 U.S.C. Section 1051(b)).

In International Class 011, the mark was first used at least as early as 02/01/2009 and first used in commerce at least as early as 12/23/2009.

Proposed: Class 011 for Air cleaning units; Air filtering installations; Air filters for industrial installations; Air purification units; Air purifiers; Air purifying apparatus; Air purifying apparatus and machines; Air purifying units for municipal and industrial odor and air emissions control use; Industrial air purifiers; Separators for the cleaning and purification of air

Deleted Filing Basis: 1(b)
In International Class 011, the mark was first used at least as early as 02/01/2009. and first used in commerce at least as early as 12/23/2009.

Applicant hereby submits a new specimen for Class 011. The specimen(s) submitted consists of The specimen consists of the following: 1) Label as it appears on the container lid of the EcoGrow product. 2) Photo of a bucket of EcoGrow as it is used with the EcoPure product in commerce 3) Affidavit that the specimen was used in commerce prior to the expiration of teh deadline of the filing of teh statement of use..
"The substitute (or new, if appropriate) specimen(s) was/were in use in commerce at least as early as the filing date of the application"[for an application based on Section 1(a), Use in Commerce] OR "The substitute (or new, if appropriate) specimen(s) was/were in use in commerce prior either to the filing of the Amendment to Allege Use or expiration of the filing deadline for filing a Statement of Use" [for an application based on Section 1(b) Intent-to-Use].
Original PDF file:
SPU0-7495160177-143329202_._EcoGrow_77666444_SOU_Affidavit_101022.pdf
Converted PDF file(s) (1 page)
Specimen File1
Original PDF file:
SPU0-7495160177-143329202_._EcoGrow_Label.pdf
Converted PDF file(s) (1 page)
Specimen File1
Original PDF file:
SPU0-7495160177-143329202_._EcoGrow_EcoPure_Odor_Control_System.pdf
Converted PDF file(s) (1 page)
Specimen File1

SIGNATURE(S)
Declaration Signature
If the applicant is seeking registration under Section 1(b) and/or Section 44 of the Trademark Act, the applicant has 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); and/or the applicant has had a bona fide intention to exercise legitimate control over the use of the mark in commerce by its members. 37 C.F. R. Sec. 2.44. 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 and/or services listed in the application as of the application filing date or as of the date of any submitted allegation of use. 37 C.F.R. Secs. 2.34(a)(1)(i); and/or the applicant has exercised legitimate control over the use of the mark in commerce by its members. 37 C.F.R. Sec. 2.44. 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. Section 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. Section 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: /LLR/      Date: 10/22/2010
Signatory's Name: Louis D. le Roux
Signatory's Position: President

Response Signature
Signature: /LLR/     Date: 10/22/2010
Signatory's Name: Louis D. le Roux
Signatory's Position: President

The signatory has confirmed that he/she is not represented by either an authorized attorney or Canadian attorney/agent, and that he/she is either (1) the applicant or (2) a person(s) with legal authority to bind the applicant; and if an authorized U.S. attorney or Canadian attorney/agent previously represented him/her in this matter, either he/she has filed a signed revocation of power of attorney with the USPTO or the USPTO has granted the request of his/her prior representative to withdraw.

        
Serial Number: 77666444
Internet Transmission Date: Fri Oct 22 15:25:09 EDT 2010
TEAS Stamp: USPTO/ROA-XX.XX.XXX.XXX-2010102215250987
7658-77666444-4708cd3a9db087c6b366b5cc15
728144b-N/A-N/A-20101022143329202125