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  78/813689

 

The assigned trademark examining attorney has reviewed the referenced application and determined the following.

 

SEARCH    TMEP §704.02   The trademark examining attorney has searched the Office records and has found no similar registered or pending mark which would bar registration under Trademark Act Section 2(d), 15 U.S.C. Section 1052(d). 

SPECIMEN REQUIRED FOR USE BASED APPLICATION

This application does not include a specimen for the identified goods.  A specimen showing use of the mark in commerce for each class of goods is required for an application based on use of the mark in commerce under Trademark Act Section 1(a), 15 U.S.C. §1051(a).  TMEP §904. 

 

Applicant must submit (1) a specimen (i.e., an example of how applicant actually uses its mark in commerce for the goods listed in the application) for each class of goods showing the mark as it is used in commerce, and, (2) a statement that “the specimen was in use in commerce at least as early as the filing date of the application,” verified with an affidavit or signed declaration under 37 C.F.R. §2.20.  37 C.F.R. §2.56(a); TMEP §§904.01 et seq. and 904.09.

 

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.

 

The following is a sample declaration under 37 C.F.R. §2.20 with a supporting statement for a 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 specimen was in use in commerce at least as early as the filing date of the application; 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 & Position

_____________________________

             Date

 

 

DISCLAIMER    Trademark Act Section 6, 15 U.S.C. §1056; TMEP §§1213 and 1213.03(a). 

The applicant must disclaim the descriptive wording "petunia" apart from the mark as shown. The wording is merely descriptive because it identifies a type of living plant.

 

pe·tu·nia (pî-t¡n¹ye, -ty¡n¹-) noun

1.  Any of various widely cultivated South American plants of the genus Petunia, having alternate, entire leaves and funnel-shaped flowers in colors from white to purple.

2. Color. A moderate to dark purple.[1]

The computerized printing format for the Trademark Official Gazette requires a standard form for a disclaimer.   TMEP section 1213.08 et seq.  A properly worded disclaimer should read as follows:

No claim is made to the exclusive right to use PETUNIA apart from the mark as shown.

See In re Owatonna Tool Co., 231 USPQ 493 (Comm'r Pats. 1983).

A disclaimer does not remove the disclaimed matter from the mark.  It is simply a statement that the applicant does not claim exclusive rights in the disclaimed wording or design apart from the mark as shown in the drawing.

 

 

/Linda E. Blohm/  Trademark Examining Attorney

571.272.9129,   Law Office 110

Facsimile 571.273.9110

 

 

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.