UNITED STATES PATENT AND TRADEMARK OFFICE
SERIAL NO: 77/919403
MARK: TEMPTATION
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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: Cornell University
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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.
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.
Likelihood of Confusion
Comparing the Marks
The applicant has applied to register the mark TEMPTATION. The registered mark is TEMPTATION. Both marks contain only the wording TEMPTATION. In this respect, the applicant’s mark and that of the registrant are identical in appearance, sound, connotation and commercial impression, and therefore, are likely to cause confusion as to the origin of the goods.
Comparing the Services
The applicant’s conflicting goods are identified as “fresh apples.” The goods named in the registration include “fresh fruit.” Both marks are used to identify fresh fruit. The same consumers will be exposed to the goods identified with both marks. The similarities among the marks and the goods of the parties are so great as to create a likelihood of confusion.
Any doubt regarding a likelihood of confusion is resolved in favor of the prior registrant. Hewlett-Packard Co. v. Packard Press Inc., 281 F.3d 1261, 62 USPQ2d 1001, 1004 (Fed. Cir. 2002); In re Hyper Shoppes (Ohio), Inc., 837 F.2d 463, 6 USPQ2d 1025 (Fed. Cir. 1988); TMEP §§1207.01(d)(i).
Accordingly, in view of the identical nature of the goods of the parties and the identical similarity of the marks and their commercial impressions, confusion as to the source of the goods is likely under Section 2(d) of the Trademark Act.
Although the examining attorney has refused registration, the applicant may respond to the refusal to register by submitting evidence and arguments in support of registration. If the applicant chooses to respond to the refusal to register, the applicant must also respond to the following issues.
Prior Pending Application
In response to this Office action, applicant may present arguments in support of registration by addressing the issue of the potential conflict between applicant’s mark and the mark in the referenced application. Applicant’s election not to submit arguments at this time in no way limits applicant’s right to address this issue later if a refusal under Section 2(d) issues.
Failure to Respond - Partial Abandonment
If applicant should fail to respond to this Office action within the six-month period for response, then the following goods and/or services will be deleted from the application: fresh apples. The application will then proceed with the following goods and/or services only: living trees, namely, apple trees; and apple tree seeds. 37 C.F.R. §2.65(a).
If the applicant has any questions or needs assistance in responding to this Office action, please telephone the assigned examining attorney. Thank you.
/Michael Webster/
Examining Attorney
USPTO Law Office 102
571-272-9266
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.