To: | Ben & Jerry's Homemade, Inc. (nyctrademarks@bakernet.com) |
Subject: | U.S. TRADEMARK APPLICATION NO. 77902924 - CHOCOWLATE CHIP - 39193324.05 |
Sent: | 3/21/2010 7:39:25 PM |
Sent As: | ECOM103@USPTO.GOV |
Attachments: |
UNITED STATES PATENT AND TRADEMARK OFFICE
SERIAL NO: 77/902924
MARK: CHOCOWLATE CHIP
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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: Ben & Jerry's Homemade, 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: 3/21/2010
The referenced application 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.
The trademark examining attorney has searched the Office’s database of registered and pending marks and has found no conflicting marks that would bar registration under Trademark Act Section 2(d). TMEP §704.02; see 15 U.S.C. §1052(d).
Section 2(e)(1) Refusal – Merely Descriptive
The applicant’s proposed mark is CHOCOWLATE CHIP for “ice cream, frozen confections.” The proposed mark is merely descriptive because it describes an ingredient of the goods. The proposed mark is a novel spelling or phonetic equivalent of “chocolate chip,” which is an ingredient of the goods. “Chocolate chip” is defined as “piece of chocolate: a small piece of chocolate, used especially in making cookies and desserts. Chocolate chip cookies.” Encarta.msn.com (on-line dictionary). A novel spelling of a merely descriptive word or term is also merely descriptive if purchasers would perceive the different spelling as the equivalent of the descriptive word or term. See In re Hercules Fasteners, Inc., 203 F.2d 753, 97 USPQ 355 (C.C.P.A. 1953) (holding “FASTIE,” phonetic spelling of “fast tie,” merely descriptive of tube sealing machines); Andrew J. McPartland, Inc. v. Montgomery Ward & Co., 164 F.2d 603, 76 USPQ 97 (C.C.P.A. 1947) (holding “KWIXTART,” phonetic spelling of “quick start,” merely descriptive of electric storage batteries); In re State Chem. Mfg. Co., 225 USPQ 687 (TTAB 1985) (holding “FOM,” phonetic equivalent spelling of “foam,” merely descriptive of foam rug shampoo); TMEP §1209.03(j).
Further action awaits response to the above.
/Mrs. W. K. H. Price, Esq./
Trademark Attorney
Law Office 103
(571) 272-9391
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.