UNITED STATES PATENT AND TRADEMARK OFFICE
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SERIAL NO: 78/164416
APPLICANT: Schmalbach-Lubeca AG
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CORRESPONDENT ADDRESS: Robert W. Becker Robert W. Becker & Associates 707 Highway 66 East, Suite B Tijeras NM 87059
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RETURN ADDRESS: Commissioner for Trademarks 2900 Crystal Drive Arlington, VA 22202-3514 ecom112@uspto.gov
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MARK: FRESHCAN
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CORRESPONDENT’S REFERENCE/DOCKET NO: N/A
CORRESPONDENT EMAIL ADDRESS:
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Please provide in all correspondence:
1. Filing date, serial number, mark and applicant's name. 2. Date of this Office Action. 3. Examining Attorney's name and Law Office number. 4. Your telephone number and e-mail address.
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Serial Number 78/164416
This letter responds to the applicant's communication filed on September 11, 2003.
The claim of the prior registration is acceptable and has been entered into the record.
Identification of Goods
The applicant was required to submit an acceptable identification of goods. That requirement is maintained and made FINAL.
The wording “filled beverage containers, namely containers primarily in the nature of cans, kegs, or barrels, entirely or primarily made of metal, and optionally filled at overpressure, or pressurized by carbon dioxide and/or nitrogen and/or other gases, or having carbonization, and containing dietary supplement drinks; containing meal replacement drinks; and/or containing concentrates, syrups, extracts, essences, and/or solids, namely, powders, press-powders (granulates), crystals, amorphous solids, all for flavoring dietary supplement drinks or meal replacement drinks, or for the preparation of dietary supplement or meal replacement drinks, optionally included with a liquid for such preparation; Dietary supplement drinks; meal replacement drinks; concentrates, syrups, extracts, essences, and/or solids, namely, powders, press-powders (granulates), crystals, amorphous solids, all for flavoring dietary supplement drinks or meal replacement drinks, or for the preparation of dietary supplement drinks or meal replacement drinks, optionally included with a liquid for such preparation” in the recitation of services is unacceptable as indefinite because the wording is unclear. The applicant may amend this wording to “filled beverage containers, namely metal cans, kegs, or barrels filled by carbon dioxide, nitrogen and/or other gases which contain dietary supplement drinks, meal replacement drinks, and/or concentrates, syrups, extracts, essences, and/or solids, namely, powders, press-powder granulates, crystals, amorphous solids, all for flavoring or preparing dietary supplement drinks or meal replacement drinks; dietary supplement drinks; meal replacement drinks; concentrates, syrups, extracts, essences, and/or solids, namely, powders, press-powder granulates, crystals, amorphous solids, all for flavoring or preparing dietary supplement drinks or meal replacement drinks,” if accurate. TMEP §1402.11.
International Class 6
The goods in International Class are properly identified and classified.
The wording “Filled beverage containers, namely containers primarily in the nature of cans, kegs or barrels, entirely or primarily made of metal, and optionally filled at overpressure, or pressurized by carbon dioxide and/or nitrogen and/or other gases, or having carbonization, containing non-alcoholic beverages, namely milk, flavored milks, dairy-based beverages, namely milkshakes, milk-containing beverages, whey, whey-containing drinks, dairy-based food-beverages; containing chocolate-flavored drinks, namely pre-mixed beverages, vegetable-based chocolate beverages, vegetable-based food beverages, chocolate dairy-based beverages; and/or containing concentrates, syrups, extracts, essences, and/or solids, namely, powders, press-powders (granulates), crystals, amorphous solids, all for flavoring or for the preparation of beverages, optionally included with a liquid for such preparation; Milk, flavored milks, dairy-based beverages, namely milkshakes, milk-containing beverages, whey, whey-containing drinks, dairy-based food-beverages; chocolate-flavored drinks, namely pre-mixed beverages, vegetable-based chocolate beverages, vegetable-based food beverages, and chocolate dairy-based beverages” in the recitation of services is unacceptable as indefinite because the wording is unclear. The applicant may amend this wording to “filled beverage containers, namely containers metal cans, kegs or barrels, filled with carbon dioxide and/or nitrogen and/or other gases, or having carbonization, which contain non-alcoholic beverages, namely milk, flavored milks, dairy-based beverages, namely milkshakes, milk-containing beverages, whey, whey-containing drinks, dairy-based food-beverages, chocolate-flavored drinks, namely pre-mixed beverages, vegetable-based chocolate beverages, vegetable-based food beverages, chocolate dairy-based beverages,; Milk, flavored milks, dairy-based beverages, namely milkshakes, milk-containing beverages, whey, whey-containing drinks, dairy-based food-beverages; chocolate-flavored drinks, namely pre-mixed beverages, vegetable-based chocolate beverages, vegetable-based food beverages, and chocolate dairy-based beverages,” if accurate. TMEP §1402.11.
The wording “concentrates, syrups, extracts, essences, and/or solids, namely, powders, press-powders (granulates), crystals, amorphous solids, all for flavoring or for the preparation of beverages, optionally included with a liquid for such preparation” in the identification of goods is unacceptable as indefinite because it is unclear. The applicant must amend the identification to specify the common commercial name of the goods. If there is no common commercial name for the product, the applicant must describe the product and its intended uses. TMEP §1402.01.
The wording “Filled beverage containers, namely containers primarily in the nature of cans, kegs or barrels, entirely or primarily made of metal, and optionally filled at overpressure, or pressurized by carbon dioxide and/or nitrogen and/or other gases, or having carbonization, containing non-alcoholic beverages, namely non-dairy, non-food based chocolate beverages; containing coffee, coffee-based drinks, namely coffee-flavored drinks, cappuccino beverages, latte beverages; containing tea, tea-based beverages, herbal tea for food purposes, herbal tea-based drinks; Non-dairy, non-food based chocolate beverages; coffee, coffee-based drinks, namely coffee-flavored drinks, cappuccino beverages, latte beverages; tea, tea-based beverages, herbal tea for food purposes, herbal tea-based drinks,” in the recitation of services is unacceptable as indefinite because the wording is unclear. The applicant may amend this wording to “filled metal beverage containers, namely cans, kegs or barrels filled with carbon dioxide and/or nitrogen and/or other gases, or having carbonization which contain non-alcoholic beverages, namely non-dairy, non-food based chocolate beverage, coffee, coffee-based drinks, namely coffee-flavored drinks, cappuccino beverages, latte beverages, tea, tea-based beverages, herbal tea for food purposes, herbal tea-based drinks; non-dairy, non-food based chocolate beverages; coffee, coffee-based drinks, namely coffee-flavored drinks, cappuccino beverages, latte beverages; tea, tea-based beverages, herbal tea for food purposes, herbal tea-based drinks,” if accurate. TMEP §1402.11.
The wording “and/or containing concentrates, syrups, extracts, essences, and/or solids, namely, powders, press-powders (granulates), crystals, amorphous solids, all for flavoring or for the preparation of beverages, optionally included with a liquid for such preparation” in the identification of goods is unacceptable as indefinite because it is unclear. The applicant must amend the identification to specify the common commercial name of the goods. If there is no common commercial name for the product, the applicant must describe the product and its intended uses. TMEP §1402.01.
The wording “filled beverage containers, namely containers primarily in the nature of cans, kegs or barrels, entirely or primarily made of metal, and optionally filled at overpressure, or pressurized by carbon dioxide and/or nitrogen and/or other gases, or having carbonization, containing alcoholic beverages namely, beer and ale; or containing non-alcoholic beverages, namely, non-alcoholic malt beverages, isotonic drinks, ciders, fruit drinks, fruit-flavored soft drinks, fruit juices, fruit nectars, fruit punch, fruit-based soft drinks flavored with tea, fruit-flavored drinks, ginger ale, ginger beer, vegetable juices, soft drinks flavored with tea, colas, soft drinks, lemonade, vegetable-based drinks, fruit-based drinks, other plant-based drinks, fruit-flavored drinks, sports drinks, water, mineral water, aerated water, flavored-water; containing non-dairy-non-vegetable-based beverages; Alcoholic beverages, namely, beer and ale, or non-alcoholic beverages, namely, non-alcoholic malt beverages, isotonic drinks, ciders, fruit drinks, fruit-flavored soft drinks, fruit juices, fruit nectars, fruit punch, fruit-based soft drinks flavored with tea, fruit-flavored drinks, ginger ale, ginger beer, vegetable juices, soft drinks flavored with tea, colas, soft drinks, lemonade, vegetable-based drinks, fruit-based drinks, other plant-based drinks, fruit-flavored drinks, sports drinks, water, mineral water, aerated water, flavored-water; non-dairy-non-vegetable-based beverages,” in the recitation of services is unacceptable as indefinite because the wording is unclear. The applicant may amend this wording to “filled metal beverage containers in the nature of cans, kegs or barrels, and filled with carbon dioxide and/or nitrogen and/or other gases, or having carbonization, which contain alcoholic beverages namely, beer and ale, non-alcoholic beverages, namely, non-alcoholic malt beverages, isotonic drinks, ciders, fruit drinks, fruit-flavored soft drinks, fruit juices, fruit nectars, fruit punch, fruit-based soft drinks flavored with tea, fruit-flavored drinks, ginger ale, ginger beer, vegetable juices, soft drinks flavored with tea, colas, soft drinks, lemonade, vegetable-based drinks, fruit-based drinks, other plant-based drinks, fruit-flavored drinks, sports drinks, water, mineral water, aerated water, flavored-water, non-dairy-non-vegetable-based beverages; alcoholic beverages, namely, beer and ale, or non-alcoholic beverages, namely, non-alcoholic malt beverages, isotonic drinks, ciders, fruit drinks, fruit-flavored soft drinks, fruit juices, fruit nectars, fruit punch, fruit-based soft drinks flavored with tea, fruit-flavored drinks, ginger ale, ginger beer, vegetable juices, soft drinks flavored with tea, colas, soft drinks, lemonade, vegetable-based drinks, fruit-based drinks, other plant-based drinks, fruit-flavored drinks, sports drinks, water, mineral water, aerated water, flavored-water, non-dairy-non-vegetable-based beverages,” if accurate. TMEP §1402.11.
The wording “and/or containing concentrates, syrups, extracts, essences, or solids, namely, powders, press-powders (granulates), crystals, amorphous solids, all for flavoring or for the preparation of beverages, optionally included with a liquid for such preparation” in the identification of goods is unacceptable as indefinite because it is unclear. The applicant must amend the identification to specify the common commercial name of the goods. If there is no common commercial name for the product, the applicant must describe the product and its intended uses. TMEP §1402.01.
The applicant must delete the parenthesis from the identification of goods.
The applicant should consult the on-line identification manual on the PTO homepage for a searchable database of acceptable identifications for goods and services. The manual is available at: http://www.gov.uspto.report/web/offices/tac/doc/gsmanual.
Please note that, while an application may be amended to clarify or limit the identification, additions to the identification are not permitted. 37 C.F.R. §2.71(a); TMEP §1402.06. Therefore, the applicant may not amend to include any goods or services that are not within the scope of the goods and services recited in the present identification.
If the applicant prosecutes this application as a combined, or multiple‑class, application, the applicant must comply with each of the following.
(1) The applicant must list the goods/services by international class with the classes listed in ascending numerical order. TMEP §1403.01.
(2) The applicant must submit a filing fee for each international class of goods/services not covered by the fee already paid. 37 C.F.R. §§2.6(a)(1) and 2.86(a); TMEP §§810.01 and 1403.01. Effective January 1, 2003, the fee for filing a trademark application is $335 for each class. This applies to classes added to pending applications as well as to new applications filed on or after that date.
For the foregoing reasons, this action is made FINAL.
Applicant may respond to this final action by either: (1) submitting a timely response that fully satisfies any outstanding requirements, if feasible; (2) timely filing an appeal of this final action to the Trademark Trial and Appeal Board; or (3) timely filing a petition to the Director if permitted by 37 C.F.R. §2.63(b). 37 C.F.R. §2.64(a); TMEP §715.01. Regarding petitions to the Director, See 37 C.F.R. §2.146 and TMEP Chapter 1700.
If applicant fails to respond within six months of the mailing date of this final action, then the goods to which the final refusal(s) and/or requirement(s) apply will be deleted from the application. The application will proceed forward for the remaining goods only. 37 C.F.R. §2.65(a).
/Esther Borsuk/
Examining Attorney
Law Office 112
Phone: (703) 306-7913
Fax: (703) 746-8112
ecom112@uspto.gov
How to respond to this Office Action:
To respond formally using the Office’s Trademark Electronic Application System (TEAS), visit http://www.gov.uspto.report/teas/index.html and follow the instructions.
To respond formally via E-mail, visit http://www.gov.uspto.report/web/trademarks/tmelecresp.htm and follow the instructions.
To respond formally via regular mail, your response should be sent to the mailing Return Address listed above and include the serial number, law office and examining attorney’s name on the upper right corner of each page of your response.
FOR INQUIRIES OR QUESTIONS ABOUT THIS OFFICE ACTION, PLEASE CONTACT THE ASSIGNED EXAMINING ATTORNEY.