Application

PTO Form 1478 (Rev 6/2005)

OMB No. 0651-0009 (Exp xx/xx/xxxx)

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PTO Form 1478 (Rev 6/2005)

OMB No. 0651-0009 (Exp xx/xx/xxxx)

Trademark/Service Mark Application, Principal Register

Serial Number: 78485415
Filing Date: 09/17/2004

To the Commissioner for Trademarks:

MARK: SCOTTS TURF BUILDER WITH PLUS 2 WEED CONTROL LAWN FERTILIZER AND BROADLEAF WEED CONTROL (stylized and/or with design, see mark)

The literal element of the mark consists of SCOTTS TURF BUILDER WITH PLUS 2 WEED CONTROL LAWN FERTILIZER AND BROADLEAF WEED CONTROL.

The color(s) yellow, red, green and white is/are claimed as a feature of the mark.

The mark consists of the distinctive trade dress characterizing the front of the packaging for Applicant's goods. The package is in the shape of a rectangle, and consists of a yellow rectangle at the top of the bag, a red band below the yellow rectangle, and a yellow arc near the middle of the package. The SCOTTS and Design trademark (the word "Scotts" in white lettering in a green oval surrounded by a white line) is centered on top of the arc design. The trademark TURF BUILDER appears just below the SCOTTS and Design mark, with the wording "WITH PLUS 2 WEED CONTROL LAWN FERTILIZER AND BROADLEAF WEED CONTROL." The lower portion of the package consists of the image of a square of soil with growing grass and weeds, below which is a small white rectangle outlined in green, and including the word "TIMING:". A yellow arc with the SCOTTS and Design trademark is shown again at the bottom of the package.

The applicant, OMS Investments, Inc., a corporation of Delaware, residing at Suite 2800, 10250 Constellation Blvd., Los Angeles, CA, United States, 90067, requests registration of the trademark/service mark identified above in the United States Patent and Trademark Office on the Principal Register established by the Act of July 5, 1946 (15 U.S.C. Section 1051 et seq.), as amended.

The applicant, or the applicant's related company or licensee, is using the mark in commerce, and lists below the dates of use by the applicant, or the applicant's related company, licensee, or predecessor in interest, of the mark on or in connection with the identified goods and/or services. 15 U.S.C. Section 1051(a), as amended.

      International Class 001: FERTILIZER FOR DOMESTIC USE.

In International Class 001, the mark was first used at least as early as 01/01/2004, and first used in commerce at least as early as 01/01/2004, and is now in use in such commerce. The applicant is submitting or will submit one specimen for each class showing the mark as used in commerce on or in connection with any item in the class of listed goods and/or services, consisting of a(n) packaging bag.

      Specimen - 1

The applicant hereby appoints Erin M. Clarke and Melville Owen, Gregory N. Owen, Noel M. Cook, Linda Joy Kattwinkel, J. Scott Gerien, Erin M. Clarke, Bonnie J. Barnish, and Lawrence G. Townsend of Owen Wickersham & Erickson, P.C., Suite 1910, 455 Market Street, San Francisco, CA, United States, 94105 to submit this application on behalf of the applicant. The attorney docket/reference number is SCOTT 00390.

The USPTO is authorized to communicate with the applicant or its representative at the following email address: tmparalegal@owe.com.

A fee payment in the amount of $335 will be submitted with the application, representing payment for 1 class(es).

Declaration

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, and the like, 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; and that all statements made of his/her own knowledge are true; and that all statements made on information and belief are believed to be true.



Signature: /nam/   Date: 09/16/2004
Signatory's Name: Nicole A. McClelland
Signatory's Position: Assistant Treasurer


Mailing Address:
     Erin M. Clarke
     Suite 1910
     455 Market Street
     San Francisco, CA 94105

RAM Sale Number: 1155
RAM Accounting Date: 09/17/2004

Serial Number: 78485415
Internet Transmission Date: Fri Sep 17 14:21:20 EDT 2004
TEAS Stamp: USPTO/BAS-XXXXXXXXXX-2004091714212024726
3-78485415-200712d3f638570c4814e1611978d
077de-DA-1155-20040916160626773752