Offc Action Outgoing

Applicant may respond directly to this provisional refusal Office action, or applicant’s attorney may respond on applicant’s behalf. However, the only attorneys who can practice before the USPTO in trademark matters are as follows:

(1) Attorneys in good standing with a bar of the highest court of any U.S. state, the District of Columbia, Puerto Rico, and other federal territories and possessions of the United States; and

(2) Canadian agents/attorneys whorepresent applicants residing in Canada and who have received reciprocal recognition by the USPTO under 37 C.F.R. §11.14(c).

37 C.F.R. §§11.1, 11.14; TMEP §602.

Foreign attorneys are not permitted to practice before the USPTO, other than properly authorized Canadian attorneys. TMEP §602.06(b). Filing written communications, authorizing an amendment to an application, or submitting legal arguments in response to a requirement or refusal constitutes representation of a party in a trademark matter. A response signed by an unauthorized foreign attorney is considered an incomplete response. See TMEP §§602.03, 712.03.

THE APPLICATION HAS BEEN PROVISIONALLY REFUSED AS FOLLOWS:

The referenced application has been reviewed by the assigned trademark examining attorney.

No Conflicting Marks

The 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. §1052(d). TMEP §704.02. However, applicant must respond timely and completely to the issues below. 15 U.S.C. §1062(b); 37 C.F.R. §§2.62, 2.65(a); TMEP §§711, 718.03.

Entity and Citizenship

The application does not include applicant’s “Legal Nature” and “Legal Nature: Place Incorporated.” Applicant must specify its entity type (“Legal Nature”) and citizenship (“Place Incorporated”). 37 C.F.R. §2.32(a)(3); TMEP §§803.03, 803.04.

Acceptable entity types include an individual, a partnership, a corporation, or a joint venture. See 37 C.F.R. §2.32(a)(3); TMEP §§803.03 et seq.

If applicant’s entity type is an individual, applicant must indicate his or her national citizenship for the record. 37 C.F.R. §2.32(a)(3)(i); TMEP §803.04. If applicant’s entity type is a corporation or association, applicant must set forth the country under whose laws applicant is organized or incorporated. 37 C.F.R. §2.32(a)(3)(ii); TMEP §§803.03(c), 803.04. If applicant’s entity type is a partnership or joint venture, applicant must specify the country under whose laws the partnership or joint venture is organized. 37 C.F.R. §2.32(a)(3)(ii); TMEP §§803.03(b), 803.04.

Identification of Goods

The identification of goods is unacceptable for several reasons. First, the wording “drinks with energy increasing ingredients and alcoholic additions” in the identification of goods is indefinite and must be clarified because it is too broad and could include goods in other international classes. See TMEP §§1402.01, 1402.03.

Next, the identification of goods contains parentheses. Generally, parentheses and brackets should not be used in identifications. Parenthetical information is permitted in identifications only if it serves to explain or translate the matter immediately preceding the parenthetical phrase in such a way that it does not affect the clarity of the identification, e.g., “obi (Japanese sash).” TMEP §1402.12. Therefore, applicant must remove the parentheses from the identification of goods and incorporate the parenthetical information into the description.

Finally, the identification of goods is indefinite and must be clarified because it includes the open-ended wording “particularly,” “and such,” and “as far as contained in this class.” See TMEP §§1402.01, 1402.03(a). The identification must be specific and all-inclusive. Therefore, this wording should be deleted and replaced with “namely,” or simply deleted.

Please note that the international classification of goods and/or services in applications filed under Trademark Act Section 66(a) cannot be changed from the classification the International Bureau assigned to the goods and/or services in the corresponding international registration. TMEP §§1401.03(d), 1904.02(b). Therefore, any modification to this wording must identify goods and/or services in International Class 032 and 033, the classification specified in the application for these goods.

The following substitute wording is suggested, if appropriate.

Drinks, namely, mineral waters, carbonated waters and other soft drinks, namely carbonated drinks like energy drinks and refreshment drinks; drinks, namely non alcoholic energy drinks with energy increasing and awakening ingredients as caffeine in International Class 032.

Alcoholic drinks apart from beers, namely, alcoholic energy drinks with energy increasing ingredients in International Class 033.

Identifications of goods and/or services can be amended only to clarify or limit the goods and/or services; adding to or broadening the scope of the goods and/or services is not permitted. 37 C.F.R. §2.71(a); see TMEP §§1402.06 et seq., 1402.07. Therefore, applicant may not amend the identification to include goods and/or services that are not within the scope of the goods and/or services set forth in the present identification.

For assistance with identifying and classifying goods and/or services in trademark applications, please see the online searchable Manual of Acceptable Identifications of Goods and Services at http://tess2.gov.uspto.report/netahtml/tidm.html. See TMEP §1402.04.

If applicant has questions about its application or needs assistance in responding to this Office action, please contact the assigned trademark examining attorney.

/allison holtz/

Allison Holtz

Trademark Examining Attorney

allison.holtz@uspto.gov

571-272-9383

RESPOND TO THIS ACTION: Applicant should file a response to this Office action online using the form at http://www.gov.uspto.report/teas/eTEASpageD.htm, waiting 48-72 hours if applicant received notification of the Office action via e-mail. For technical assistance with the form, please e-mail TEAS@uspto.gov. For questions about the Office action itself, please contact the assigned examining attorney. Do not respond to this Office action by e-mail; the USPTO does not accept e-mailed responses.

If responding by paper mail, please include the following information: the application serial number, the mark, the filing date and the name, title/position, telephone number and e-mail address of the person signing the response. Please use the following address: Commissioner for Trademarks, P.O. Box 1451, Alexandria, VA 22313-1451.

STATUS CHECK: Check the status of the application at least once every six months from the initial filing date using the USPTO Trademark Applications and Registrations Retrieval (TARR) online system at http://tarr.uspto.gov. When conducting an online status check, print and maintain a copy of the complete TARR screen. If the status of your application has not changed for more than six months, please contact the assigned examining attorney.