UNITED STATES PATENT AND TRADEMARK OFFICE

 

 

 

OFFICE ACTION

 

RESPONSE TIME LIMIT:  TO AVOID ABANDONMENT, THE OFFICE MUST RECEIVE A PROPER RESPONSE TO THIS OFFICE ACTION WITHIN 6 MONTHS OF THE MAILING OR E-MAILING DATE. 

 

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  78/652591

 

THIS IS A FINAL ACTION

 

The examining attorney has reviewed applicant’s responses filed on January 30, 2007 and March 16, 2007 and determined the following.  The January 30, 2007 response is incomplete because it does not include a proper declaration and verified statement supporting use of the substitute specimen.  The March 16, 2007 response is incomplete because it does not contain a verified statement supporting use of the substitute specimen.

 

Substitute Specimen Not Properly Verified

 

The substitute specimen previously submitted was not properly verified and cannot be accepted into the application record.  37 C.F.R. §2.59(b)(2); TMEP §904.09. 

 

Therefore, applicant must provide the following statement, verified with an affidavit or declaration under 37 C.F.R. §2.20:  “The substitute specimen was in use in commerce prior to the expiration of the time allowed applicant for filing a statement of use.” 

 

Declaration for a Substitute Specimen

 

The following is a sample declaration under 37 C.F.R. §2.20 with a supporting statement for a substitute specimen:

 

The undersigned being warned that willful false statements and the like are punishable by fine or imprisonment, or both, under 18 U.S.C. §1001, and that such willful false statements and the like may jeopardize the validity of the application or document or any registration resulting there from, declares that the substitute specimen was in use in commerce prior to the expiration of the time allowed applicant for filing a statement of use; all statements made of his/her own knowledge are true; and all statements made on information and belief are believed to be true.

 

 

_____________________________

(Signature)

 

_____________________________

(Print or Type Name and Position)

 

_____________________________

(Date)

 

Person Who Can Sign Responses Advisory

 

Responses to Office actions must be properly signed.  TMEP §712.  If applicant has retained an attorney, the attorney must sign the response; applicant cannot sign the response.  37 C.F.R. §10.18(a); TMEP §602.  However, if applicant was previously represented by an attorney, and applicant later retains a different attorney, the newly retained attorney cannot sign responses until a new power of attorney signed by applicant is filed.  Id.  Paralegals and secretaries cannot sign responses for attorneys.

 

The only attorneys who can practice before the USPTO in trademark matters are (1) attorneys in good standing with a bar of the highest court of any U.S. state or (2) Canadian agents/attorneys who have received reciprocal recognition by the USPTO under 37 C.F.R. §10.14(c).  And Canadian attorneys can only represent Canadian applicants.  Foreign attorneys (other than duly authorized Canadian attorneys) cannot sign responses or otherwise represent applicants before the USPTO.  37 C.F.R. §§10.1(c) and 10.14.  Paralegals and secretaries cannot sign responses for attorneys.

 

If applicant is not represented by an attorney, the response must be signed by applicant or by someone with legal authority to bind applicant (i.e., a corporate officer of a corporate applicant, the equivalent of an officer for unincorporated organizations or limited liability company applicants, a general partner of a partnership applicant, each applicant for applications with multiple individual applicants, etc.).  TMEP §§712 et seq.

 

A non-attorney who is authorized to verify facts on behalf of an applicant under 37 C.F.R. §2.33(a)(2) (such as trademark administrators, accountants, business managers, administrative assistants, and personal assistants) is not entitled to sign responses to Office actions or to authorize examiner’s amendments and priority actions, unless he or she also has legal authority to bind the applicant, as specified in the paragraph immediately above.  See TMEP §§712.03 and 804.04. 

Proper Response to Final Action

 

If applicant fails to respond to this final action within six months of the mailing date, the application will be abandoned.  15 U.S.C. §1062(b); 37 C.F.R. §2.65(a).  Applicant may respond to this final action by: 

 

(1)   submitting a response that fully satisfies all outstanding requirements, if feasible (37 C.F.R. §2.64(a)); and/or

 

(2)   filing an appeal to the Trademark Trial and Appeal Board, with an appeal fee of $100 per class (37 C.F.R. §§2.6(a)(18) and 2.64(a); TMEP §§715.01 and 1501 et seq.; TBMP Chapter 1200).

 

In certain circumstances, a petition to the Director may be filed to review a final action that is limited to procedural issues, pursuant to 37 C.F.R. §2.63(b)(2).  37 C.F.R. §2.64(a).  See 37 C.F.R. §2.146(b), TMEP §1704, and TBMP Chapter 1201.05 for an explanation of petitionable matters.  The petition fee is $100.  37 C.F.R. §2.6(a)(15).

 

If applicant has particular questions regarding any of the issues set forth in this Office action, applicant may telephone the assigned trademark examining attorney.

 

 

 

 

/Blake Lovelace/

James B. Lovelace

LAW OFFICE 117

PHONE: 571.270.1533

FAX: 571.270.2533

 

 

 

NOTICE OF NEW PROCEDURE FOR E-MAILED OFFICE ACTIONS:  In late spring 2007, for any applicant who authorizes e-mail communication with the USPTO, the USPTO will no longer directly e-mail the actual Office action to the applicant.  Instead, upon issuance of an Office action, the USPTO will e-mail the applicant a notice with a link/web address to access the Office action using Trademark Document Retrieval (TDR), which is located on the USPTO website at http://portal.gov.uspto.report/external/portal/tow.  The Office action will not be attached to the e-mail notice.  Upon receipt of the notice, the applicant can then view and print the actual Office action and any evidentiary attachments using the provided link/web address.  TDR is available 24 hours a day, seven days a week, including holidays and weekends.  This new process is intended to eliminate problems associated with e-mailed Office actions that contain numerous attachments.

 

HOW TO RESPOND TO THIS OFFICE ACTION:

• ONLINE RESPONSE:  You may respond using the Office’s Trademark Electronic Application System (TEAS) Response to Office action form available on our website at http://www.gov.uspto.report/teas/index.html.  If the Office action issued via e-mail, you must wait 72 hours after receipt of the Office action to respond via TEAS.  NOTE:  Do not respond by e-mail.  THE USPTO WILL NOT ACCEPT AN E-MAILED RESPONSE.
• REGULAR MAIL RESPONSE:  To respond by regular mail, your response should be sent to the mailing return address above, and include the serial number, law office number, and examining attorney’s name.  NOTE:  The filing date of the response will be the date of receipt in the Office, not the postmarked date.  To ensure your response is timely, use a certificate of mailing.  37 C.F.R. §2.197.

 

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.