TEAS Petition to Revive Abandon Applic

PTO Form 2194 (Rev 9/2005)

OMB No. 0651-0054 (Exp 09/30/2011)

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PTO Form 2194 (Rev 9/2005)

OMB No. 0651-0054 (Exp 09/30/2011)

Petition To Revive For Office Action

To the Commissioner for Trademarks:

Application serial no. 78691057 has been amended as follows:
PETITION
Petition Statement

Applicant has firsthand knowledge that the failure to respond to the Office Action by the specified deadline was unintentional, and requests the USPTO to revive the abandoned application.

RESPONSE TO OFFICE ACTION

ARGUMENT(S)
In response to the substantive refusal(s), please note the following:

IN THE UNITED STATES PATENT AND TRADEMARK OFFICE

Applicant: The Ester C Company                    Examining Atty: Patrick W. Shanahan

Serial No.: 78/691,057                                   Law Office: 116

Filed: August 11, 2005                                    

Mark: ESTER                                                 Date: June 6, 2008

 

Via Internet Submission

Commissioner for Trademarks

Post Publication Amendments

Petitions Office

P.O. Box 1451

Alexandria, Virginia 22313-1451

Fax No. 571-270-9007

 

 

RESPONSE TO OFFICE ACTION

Dear Madam:

            In response to the Office Action dated November 26, 2007, the Applicant respectfully requests that the above-named application be reconsidered in view of the arguments presented below. 

Remarks

            Applicant requests that the description of goods be amended to delete all of the goods in International Class 3, namely:

Cosmetic preparations for body care, cosmetic preparations, namely, skin creams and non-mediated serum. 

            In addition, Applicant submits that the subject mark, ESTER, is a member of the ESTER-C family of marks that are well-known, a household brand, and used world-wide for vitamin C, vitamins and dietary supplements.  The ESTER-C marks have been in use in commerce since at least 1983.  See, ESTER-C, reg. no. 1,354,735; ESTER-C, reg. no. 1,598,104; ESTER-C, reg. no. 1,742,066; ESTER-C BOOST, reg. no. 2,528,608; ESTER-C, reg. no. 2,977,776.  The dominant portion of the ESTER-C marks is ESTER, which is identical is the subject mark of this application, and therefore in use in the market place without confusion, for many years.  Under these circumstances, the ESTER mark has been in use with the ESTER-C goods for over 21 years before the date of first use for the cited mark, ESTERA (reg. no. 3,288,615).  Applicant’s ESTER mark, therefore, may proceed to registration, without market confusion, and Applicant respectfully requests the same.  

            The Commissioner is hereby authorized to apply any charges to the Applicant’s deposit account, No. 502153.  Please contact the undersigned attorney should you have any questions. 

 

                                                            Respectfully submitted,

 

 

                                                            Lee Grosskreuz Hechtel           

                                                            NBTY, Inc.

                                                            Legal Dept.

                                                            2100 Smithtown Ave.

                                                            Ronkonkoma, New York 11779

                                                            631.218.7335

                                                            lhechtel@nbty.com

 

CLASSIFICATION AND LISTING OF GOODS/SERVICES
Applicant hereby deletes the following class of goods/services from the application.
Class 003 for Cosmetic preparations for body care; cosmetic preparations, namely, skin cream or serum

FEE(S)
Fee(s) in the amount of $100 is being submitted.

SIGNATURE(S)
Declaration Signature
If the applicant is seeking registration under Section 1(b) and/or Section 44 of the Trademark Act, the applicant had a bona fide intention to use or use through the applicant's related company or licensee the mark in commerce on or in connection with the identified goods and/or services as of the filing date of the application. 37 C.F.R. Secs. 2.34(a)(2)(i); 2.34 (a)(3)(i); and 2.34(a)(4)(ii). If the applicant is seeking registration under Section 1(a) of the Trademark Act, the mark was in use in commerce on or in connection with the goods or services listed in the application as of the application filing date. 37 C.F.R. Secs. 2.34(a)(1)(i). 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. §1001, and that such willful false statements 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. §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; that if the original application was submitted unsigned, that all statements in the original application and this submission made of the declaration signer's knowledge are true; and all statements in the original application and this submission made on information and belief are believed to be true.

Signature: /lgh/      Date: 06/06/2008
Signatory's Name: Lee Grosskreuz Hechtel
Signatory's Position: attorney

Response Signature
Signature: /lgh/     Date: 06/06/2008
Signatory's Name: Lee Grosskreuz Hechtel
Signatory's Position: attorney

The signatory has confirmed that he/she is an attorney who is a member in good standing of the bar of the highest court of a U.S. state, which includes the District of Columbia, Puerto Rico, and other federal territories and possessions; and he/she is currently the applicant's attorney or an associate thereof; and to the best of his/her knowledge, if prior to his/her appointment another U.S. attorney or a Canadian attorney/agent not currently associated with his/her company/firm previously represented the applicant in this matter: (1) the applicant has filed or is concurrently filing a signed revocation of or substitute power of attorney with the USPTO; (2) the USPTO has granted the request of the prior representative to withdraw; (3) the applicant has filed a power of attorney appointing him/her in this matter; or (4) the applicant's appointed U.S. attorney or Canadian attorney/agent has filed a power of attorney appointing him/her as an associate attorney in this matter.

        
RAM Sale Number: 878
RAM Accounting Date: 06/09/2008
        
Serial Number: 78691057
Internet Transmission Date: Fri Jun 06 15:41:43 EDT 2008
TEAS Stamp: USPTO/POA-XX.XX.XXX.X-200806061541434643
74-78691057-420c944e1e2144c61dec88595515
9275431-DA-878-20080606153205898700