To: | USANA Health Sciences, Inc. (kevin.mcmurray@us.usana.com) |
Subject: | TRADEMARK APPLICATION NO. 78907159 - USANA - N/A |
Sent: | 1/9/2007 9:12:13 AM |
Sent As: | ECOM114@USPTO.GOV |
Attachments: |
UNITED STATES PATENT AND TRADEMARK OFFICE
SERIAL NO: 78/907159
APPLICANT: USANA Health Sciences, Inc.
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CORRESPONDENT ADDRESS: ATTN.: LEGAL SERVICES DEPARTMENT
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Commissioner for TrademarksP.O. Box 1451 Alexandria, VA 22313-1451
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MARK: USANA
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CORRESPONDENT’S REFERENCE/DOCKET NO: N/A
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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EXAMINER’S AMENDMENT/PRIORITY 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. If applicant responds to the issues below within two months of the above mailing or e-mailing date, this case will be given priority handling.
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.
OFFICE RECORDS SEARCH: The Office records have been searched and no similar registered or pending mark has been found that would bar registration under Trademark Act Section 2(d), 15 U.S.C. §1052(d). TMEP §704.02.
ADVISORY – AMENDMENTS TO GOODS/SERVICES: If the identification of goods and/or services has been amended below, any future amendments must be in accordance with 37 C.F.R. §2.71(a) and TMEP §1402.07(e).
QUESTIONS: Please contact the assigned trademark examining attorney with any questions.
Serial Number 78/907159
Applicant must respond to each refusal and/or requirement raised below. If applicant responds to the issues below within two months of the above mailing or e-mailing date, this case will be given priority handling. TMEP §§708.01 and 708.05.
THIS REQUIREMENT APPLIES TO CLASS(ES) 32 ONLY.
The application is incomplete because it does not include the required specimen showing use of the applied-for mark in commerce for the goods identified in the application. An application based on Section 1(a) of the Trademark Act must include a specimen showing the applied-for mark in use in commerce for each class of goods and/or services. Trademark Act Sections 1(a) and 45, 15 U.S.C. §§1051(a) and 1127; 37 C.F.R. §§2.34(a)(1)(iv) and 2.56; TMEP §904.
The applicant added a class in class 32 resulting in three classes; however, it submitted only two specimens.
Therefore, applicant must submit the following:
(1) A specimen (i.e., an example of how applicant actually uses its mark in commerce) for class 32; and
(2) The following statement, verified with an affidavit or signed declaration under 37 C.F.R. §2.20: “The specimen was in use in commerce at least as early as the filing date of the application.” 37 C.F.R. §2.56(a); TMEP §904.09. If submitting a specimen requires an amendment to the dates of use, applicant must also verify the amended dates. 37 C.F.R. §2.71(c).
Examples of 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 applicant cannot satisfy the above requirements, applicant may amend the Section 1(a) filing basis (use in commerce) to Section 1(b) (intent to use basis), for which no specimen is required. However, should applicant amend the basis to Section 1(b), registration cannot be granted until applicant later amends the application back to use in commerce by filing an acceptable allegation of use with a proper specimen. 15 U.S.C. §1051(c); 37 C.F.R. §§2.76, 2.88; TMEP Chapter 1100.
In order to amend to Section 1(b), applicant must submit the following statement, verified with an affidavit or signed declaration under 37 C.F.R. §2.20: “Applicant has had a bona fide intention to use the mark in commerce on or in connection with the goods or services listed in the application as of the filing date of the application.” 15 U.S.C. §1051(b); 37 C.F.R. §§2.34(a)(2) and 2.35(b)(1); TMEP §806.01(b).
Pending a proper response, registration is refused because applicant has not provided evidence of use in commerce of the applied-for mark. 15 U.S.C. §§1051(a), 1127; 37 C.F.R. §§2.34(a)(1)(iv) and 2.56.
THIS REQUIREMENT APPLIES TO CLASS(ES) 32 ONLY.
The application does not include the required dates of first use of the mark for class 32 goods. Applicant must provide the following, verified with an affidavit or signed declaration under 37 C.F.R. §2.20: (1) the date of first use of the mark anywhere, and (2) the date of first use of the mark in commerce. 15 U.S.C. §1051(a)(2); 37 C.F.R. §§2.34(a)(1)(ii)-(iii) and 2.71(c); TMEP §§903 et seq. These two dates must be provided even if they are the same. TMEP §903.04.
Applicant should add the following declaration paragraph to the end of its response, and include a dated signature by a person authorized under 37 C.F.R. §2.33(a). 37 C.F.R. §2.20.
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 and the like may jeopardize the validity of the application or document or any resulting registration, declares that the facts set forth in this application are true; all statements made of his/her own knowledge are true; and all statements made on information and belief are believed to be true.
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(Signature)
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(Print or Type Name and Position)
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(Date)
Partial Refusal as to Class(es)—Abandonment Advisory
If applicant should fail to respond to this Office action within the six month time limit, then Class(es) 32 will be deleted from the application and the application will proceed forward for Class(es) 5 and 29 only.
/Alex Seong Keam/
Attorney
Law Office 114
Phone: (571) 272-9176
Fax for Responses: (571) 273-9114
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