Offc Action Outgoing

TO AVOID ABANDONMENT OF APPLICANT’S TRADEMARK APPLICATION, THE USPTO MUST RECEIVE APPLICANT’S COMPLETE RESPONSE TO THIS LETTER WITHIN 6 MONTHS OF THE ISSUE/MAILING DATE BELOW.

ISSUE/MAILING DATE:

THIS IS A FINAL ACTION.

Applicant’s September 22, 2010 response is vague and insufficient.

Therefore, the requirement to submit proper dates of use that support a Section 1(a) filing basis, as shown in the July 6, 2009 application, is maintained and made FINAL.

DATES OF USE REQUIRED

The application does not include the required dates of first use of the mark. Applicant must provide the following, verified with an affidavit or signed declaration under 37 C.F.R. §2.20: (1) the date of first use of the mark anywhere, and (2) the date of first use of the mark in commerce. 15 U.S.C. §1051(a)(2); 37 C.F.R. §2.34(a)(1)(ii)-(iii); TMEP §903; see 37 C.F.R. §§2.71(c), 2.193(e)(1). These two dates must be provided even if they are the same. See TMEP §903.03.

For an application based on use in commerce under Trademark Act Section 1(a), applicant must have used the mark in commerce at least as early as the application filing date. 37 C.F.R. §2.34(a)(1)(i); TMEP §§806.01(a), 901; see 15 U.S.C. §1051(a)(2), (a)(3)(C).

If applicant used the mark in commerce on or before the application filing date, then applicant may amend the dates-of-use clause to specify the correct dates of use. Applicant must verify any amendment of the dates of use with an affidavit or signed declaration under 37 C.F.R. §2.20. 37 C.F.R. §2.71(c); TMEP §903.04; see 37 C.F.R. §2.193(e)(1).

If applicant did not use the mark in commerce on or before the filing date, then applicant may substitute a different basis for filing if applicant can meet the requirements for the new basis. See TMEP §§806.01 et seq., 806.03.

In this case, applicant may wish to amend the application to assert a Section 1(b) basis; the requirements of which are set forth below. An application based on a bona fide intention to use the mark in commerce must include the following statement, verified with an affidavit or signed declaration under 37 C.F.R. §2.20:

Applicant has had a bona fide intention to use the mark in commerce on or in connection with the goods or services listed in the application as of the filing date of the application.

15 U.S.C. §1051(b)(3)(B); 37 C.F.R. §2.34(a)(2); TMEP §806.01(b); see 37 C.F.R. §2.193(e)(1).

Please note: An applicant can assert more than one basis in an application, provided that the applicant satisfies all requirements for each basis claimed. 37 C.F.R. §2.34(b)(1); TMEP §806.02(a).

Different bases can be asserted for different international classes of goods and services, and for specific goods and/or services within a class. However, if an applicant asserts different bases in the same application, the applicant must clearly state that it is claiming more than one basis, and must separately list each basis, followed by the goods and/or services to which that basis applies. If some or all of the goods or services are covered by more than one basis, this must be stated. 37 C.F.R. §§2.34(b)(2), 2.35(b)(6).

An applicant cannot assert both use in commerce, under Trademark Act Section 1(a), and intent to use the mark in commerce, under Section 1(b), for the same goods or services. 37 C.F.R. §2.34(b)(1); TMEP §806.02(b).

RESPONSE TO FINAL OFFICE ACTION

If applicant does not respond within six months of the mailing date of this final Office action, the application will be abandoned. 15 U.S.C. §1062(b); 37 C.F.R. §2.65(a). Applicant may respond to this final Office action by:

(1) Submitting a response that fully satisfies all outstanding requirements, if feasible; and/or

(2) Filing an appeal to the Trademark Trial and Appeal Board, with an appeal fee of $100 per class.

37 C.F.R. §§2.6(a)(18), 2.64(a); TBMP ch. 1200; TMEP §714.04.

In certain rare circumstances, a petition to the Director may be filed pursuant to 37 C.F.R. §2.63(b)(2) to review a final Office action that is limited to procedural issues. 37 C.F.R. §2.64(a); TMEP §714.04; see 37 C.F.R. §2.146(b); TBMP §1201.05; TMEP §1704 (explaining petitionable matters). The petition fee is $100. 37 C.F.R. §2.6(a)(15).

/Giselle M. Agosto/

Examining Attorney

Trademark Law Office 102

Phone: (571) 272-5868

TO RESPOND TO THIS LETTER: Use the Trademark Electronic Application System (TEAS) response form at http://teasroa.gov.uspto.report/roa/. Please wait 48-72 hours from the issue/mailing date before using TEAS, to allow for necessary system updates of the application. For technical assistance with online forms, e-mail TEAS@uspto.gov.

WHO MUST SIGN THE RESPONSE: It must be personally signed by an individual applicant or someone with legal authority to bind an applicant (i.e., a corporate officer, a general partner, all joint applicants). If an applicant is represented by an attorney, the attorney must sign the response.

PERIODICALLY CHECK THE STATUS OF THE APPLICATION: To ensure that applicant does not miss crucial deadlines or official notices, check the status of the application every three to four months using Trademark Applications and Registrations Retrieval (TARR) at http://tarr.gov.uspto.report/. Please keep a copy of the complete TARR screen. If TARR shows no change for more than six months, call 1-800-786-9199. For more information on checking status, see http://www.gov.uspto.report/trademarks/process/status/.

TO UPDATE CORRESPONDENCE/E-MAIL ADDRESS: Use the TEAS form at http://www.gov.uspto.report/teas/eTEASpageE.htm.