To: | MasterBrand Cabinets, Inc. (ipdocket@calfee.com) |
Subject: | TRADEMARK APPLICATION NO. 78568254 - PERFORMA - 27475/07784 |
Sent: | 3/13/2006 8:01:15 AM |
Sent As: | ECOM102@USPTO.GOV |
Attachments: |
UNITED STATES PATENT AND TRADEMARK OFFICE
SERIAL NO: 78/568254
APPLICANT: MasterBrand Cabinets, Inc.
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CORRESPONDENT ADDRESS: |
RETURN ADDRESS: Commissioner for Trademarks P.O. Box 1451 Alexandria, VA 22313-1451
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MARK: PERFORMA
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CORRESPONDENT’S REFERENCE/DOCKET NO: 27475/07784
CORRESPONDENT EMAIL ADDRESS: |
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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MAILING/E-MAILING DATE INFORMATION: If the mailing or e-mailing date of this Office action does not appear above, this information can be obtained by visiting the USPTO website at http://tarr.gov.uspto.report/, inserting the application serial number, and viewing the prosecution history for the mailing date of the most recently issued Office communication.
Serial Number 78/568254
This letter responds to the Applicant’s Statement of Use filed on February 23, 2006.
Applicant must submit (1) a substitute specimen showing the mark as it is used in commerce on the goods or on packaging for the goods, and (2) a statement that “the substitute specimen was in use in commerce prior to the expiration of the time allowed applicant for filing a statement of use,” verified with a notarized affidavit or a signed declaration under 37 C.F.R. §2.20. 37 C.F.R. §§2.56, 2.59(b)(2) and 2.88(b)(2); TMEP §§904.09 and 1109.09(b).
The current specimen of record comprises a copy of promotional literature about the goods and is unacceptable as evidence of actual trademark use because it does not show use as a point-of-sale presentation. Folders and brochures that describe goods and their characteristics or serve as advertising literature are not per se "displays." In re Schiapparelli Searle, 26 USPQ2d 1520 (TTAB 1993); In re Drilco Industrial Inc., 15 USPQ2d 1671 (TTAB 1990). In order to rely on such materials as specimens, an applicant must submit evidence of point-of-sale presentation. See In re Ancha Electronics Inc., 1 USPQ2d 1318 (TTAB 1986); In re Columbia Chase Corp., 215 USPQ 478 (TTAB 1982). See TMEP §904.06(a) regarding the criteria by which a catalog or other advertising may constitute a display associated with the goods.
Examples of acceptable specimens for goods are tags, labels, instruction manuals, containers, photographs that show the mark on the goods or packaging, or displays associated with the goods at their point of sale. TMEP §§904.04 et seq.
If the applicant has any questions or needs assistance in responding to this Office action, please telephone the assigned examining attorney.
/Dominic J. Ferraiuolo/
Attorney US Patent & Trademark Office
Law Office 102
tel: (571)-272-9156
fax: (571) 273-9102
HOW TO RESPOND TO THIS OFFICE ACTION:
STATUS OF APPLICATION: To check the status of your application, visit the Office’s Trademark Applications and Registrations Retrieval (TARR) system at http://tarr.uspto.gov.
VIEW APPLICATION DOCUMENTS ONLINE: Documents in the electronic file for pending applications can be viewed and downloaded online at http://portal.gov.uspto.report/external/portal/tow.
GENERAL TRADEMARK INFORMATION: For general information about trademarks, please visit the Office’s website at http://www.gov.uspto.report/main/trademarks.htm
FOR INQUIRIES OR QUESTIONS ABOUT THIS OFFICE ACTION, PLEASE CONTACT THE ASSIGNED EXAMINING ATTORNEY SPECIFIED ABOVE.