To: | Park, James (james9701@gmail.com) |
Subject: | U.S. TRADEMARK APPLICATION NO. 85116048 - FAB WINGS N BURGERS - N/A |
Sent: | 12/16/2010 4:51:54 PM |
Sent As: | ECOM106@USPTO.GOV |
Attachments: |
UNITED STATES PATENT AND TRADEMARK OFFICE (USPTO)
OFFICE ACTION (OFFICIAL LETTER) ABOUT APPLICANT’S TRADEMARK APPLICATION
APPLICATION SERIAL NO. 85116048
MARK: FAB WINGS N BURGERS
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CORRESPONDENT ADDRESS: |
CLICK HERE TO RESPOND TO THIS LETTER: http://www.gov.uspto.report/teas/eTEASpageD.htm
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APPLICANT: Park, James
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CORRESPONDENT’S REFERENCE/DOCKET NO: CORRESPONDENT E-MAIL ADDRESS: |
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STRICT DEADLINE TO RESPOND TO THIS LETTER
TO AVOID ABANDONMENT OF APPLICANT’S TRADEMARK APPLICATION, THE USPTO MUST RECEIVE APPLICANT’S COMPLETE RESPONSE TO THIS LETTER WITHIN 6 MONTHS OF THE ISSUE/MAILING DATE BELOW.
ISSUE/MAILING DATE: 12/16/2010
TEAS PLUS APPLICANTS MUST SUBMIT DOCUMENTS ELECTRONICALLY OR SUBMIT FEE: Applicants who filed their application online using the reduced-fee TEAS Plus application must continue to submit certain documents online using TEAS, including responses to Office actions. See 37 C.F.R. §2.23(a)(1). For a complete list of these documents, see TMEP §819.02(b). In addition, such applicants must accept correspondence from the Office via e-mail throughout the examination process and must maintain a valid e-mail address. 37 C.F.R. §2.23(a)(2); TMEP §§819, 819.02(a). TEAS Plus applicants who do not meet these requirements must submit an additional fee of $50 per international class of goods and/or services. 37 C.F.R. §2.6(a)(1)(iv); TMEP §819.04. In appropriate situations and where all issues can be resolved by amendment, responding by telephone to authorize an examiner’s amendment will not incur this additional fee.
The assigned trademark examining attorney has reviewed the referenced application and determined the following.
Search Results
The trademark examining attorney has searched the Office’s database of registered and pending marks and has found no conflicting marks that would bar registration under Trademark Act Section 2(d). TMEP §704.02; see 15 U.S.C. §1052(d).
Nevertheless, the applicant must respond to the following informality.
Disclaimer Required
The applicant must disclaim the wording WINGS AND BURGERS.
The Office can require an applicant to disclaim an unregistrable component of a mark. 15 U.S.C. §1056(a). Failure to comply with a disclaimer requirement can result in a refusal to register the entire mark. TMEP §1213.01(b).
The following cases further explain the disclaimer requirement: Dena Corp. v. Belvedere Int’l Inc., 950 F.2d 1555, 21 USPQ2d 1047 (Fed. Cir. 1991); In re Kraft, Inc., 218 USPQ 571 (TTAB 1983).
Applicant’s services are presumed to feature chicken wings and burger sandwiches. See the applicant’s identification of services. As such, the wording “WINGS N BURGERS” is merely descriptive of some of the foods the applicant’s services feature. Note that “WINGS N BURGERS” is an intentional misspelling of "WINGS AND BURGERS" The disclaimer must show the wording in the correct spelling. See In re Omaha Nat’l Corp., 819 F.2d 1117, 2 USPQ2d 1859 (Fed. Cir. 1987); In re Carlson, 91 USPQ2d 1198, 1203 (TTAB 2009); TMEP §1213.08(c).
Therefore, applicant must amend the disclaimer to the following:
No claim is made to the exclusive right to use “WINGS AND BURGERS” apart from the mark as shown.
See TMEP §1213.08(a)(i).
Description of the Mark/Color Location Statement Must Be Amended
If black, white and/or gray are not being claimed as a color feature of the mark, applicant must state that the colors black, white and/or gray represent background, outlining, shading and/or transparent areas and are not part of the mark. TMEP §807.07(d). Generic color names must be used to describe the colors in the mark, e.g., magenta, yellow, turquoise. TMEP §807.07(a)(i)-(a)(ii).
Therefore, applicant must provide a description of the literal and design elements in the mark that specifies where all the colors appear in those elements. The following description is suggested, if accurate: “The mark consists of the term "Fab" in the color yellow and outlined in the color black, the term "n" in the color red, titled right in a 45 degree angle and outlined in the color white, the terms "Wings" and "Burgers" in the color white and outlined in the color black, all on top of a red circle outlined with a white circular border and then a black circular border. TMEP §807.07(a)(ii).
Responding to this Office Action
The response must be signed by the individual applicant or someone with legal authority to bind a juristic applicant (e.g., a corporate officer or general partner). See 37 C.F.R. §§2.62(b), 2.193(e)(2)(ii); TMEP §§611.03(b), 611.06 et seq., 712.01. In the case of joint applicants, all must sign. 37 C.F.R. §2.193(e)(2)(ii); TMEP §611.06(a). In addition, the proper signatory must personally sign or personally enter his/her electronic signature. See 37 C.F.R. §2.193(a), (e)(2)(ii); TMEP §§611.01(b), 611.02.
The Office recommends applicants use the Trademark Electronic Application System (TEAS) to respond to Office actions online at http://www.gov.uspto.report/teas/index.html. If applicant responds on paper via regular mail, the response should include the title “Response to Office Action” and the following information: (1) the name and law office number of the examining attorney, (2) the serial number and filing date of the application, (3) the date of issuance of this Office action, (4) applicant’s name, address, telephone number and e-mail address (if applicable), and (5) the mark. 37 C.F.R. §2.194(b)(1); TMEP §302.03(a).
/John D. Dalier/
Trademark Examining Attorney
Law Office 106; 571 272 9150
Fax (571) 273-9106
TO RESPOND TO THIS LETTER: Use the Trademark Electronic Application System (TEAS) response form at http://teasroa.gov.uspto.report/roa/. Please wait 48-72 hours from the issue/mailing date before using TEAS, to allow for necessary system updates of the application. For technical assistance with online forms, e-mail TEAS@uspto.gov.
WHO MUST SIGN THE RESPONSE: It must be personally signed by an individual applicant or someone with legal authority to bind an applicant (i.e., a corporate officer, a general partner, all joint applicants). If an applicant is represented by an attorney, the attorney must sign the response.
PERIODICALLY CHECK THE STATUS OF THE APPLICATION: To ensure that applicant does not miss crucial deadlines or official notices, check the status of the application every three to four months using Trademark Applications and Registrations Retrieval (TARR) at http://tarr.gov.uspto.report/. Please keep a copy of the complete TARR screen. If TARR shows no change for more than six months, call 1-800-786-9199. For more information on checking status, see http://www.gov.uspto.report/trademarks/process/status/.
TO UPDATE CORRESPONDENCE/E-MAIL ADDRESS: Use the TEAS form at http://www.gov.uspto.report/teas/eTEASpageE.htm.