| PTO Form 1957 (Rev 9/2005) |
| OMB No. 0651-0050 (Exp. 07/31/2017) |
| Input Field |
Entered |
|---|---|
| SERIAL NUMBER | 85479933 |
| LAW OFFICE ASSIGNED | LAW OFFICE 105 |
| MARK SECTION | |
| MARK | http://tess2.gov.uspto.report/ImageAgent/ImageAgentProxy?getImage=85479933 |
| LITERAL ELEMENT | 31 |
| STANDARD CHARACTERS | YES |
| USPTO-GENERATED IMAGE | YES |
| MARK STATEMENT | The mark consists of standard characters, without claim to any particular font style, size or color. |
| ARGUMENT(S) | |
|
A. Likelihood of Confusion. A copy of the Tap Handle for 31 attached evidencing how this mark is currently being used in commerce without any consumer confusion in the marketplace since at least September of 2007. Applicant does not believe there is a likelihood of confusion between 31 as a micro brewed beer on the east coast, and PALE 31 on the west coast as a beer, out of Buellton, California. The consumers purchasing these beers are located in completely different regions of the country and therefore these goods will not be encountered by the same consumer purchasers, nor do they come from a common source. Applicant also does not believe there would be any confusion as to the source of the beers because 31 is brewed from DuClaw Brewery, LLC, a microbrewery of beers and it is distributed as depicted on the attached tap handle that denotes a specific beer product (goods), which is a spiced munich dunkel. While the PALE 31 manufactured by Firestone Walker LLC (Firestone, is actually a California pale ale.
The proposed mark 31 consists of standard characters, without claim to any particular font, style, size, or color. Tap Handle displaying the number "31" in all blocked numbers with a break/space in the upper and lower curved portion of the number "3".
While the above marks may be appear to be highly similar, and the goods and services may appear to be identical, namely beer, for the reasons stated above, Applicant is seeking a Co-Existence Agreement with Firestone such that both parties would agree to the registration based upon the distinctions in the use of the trademark as described above, pursuant to its request letter to Firestone’s Attorney of Record Rod Berman, dated September 14, 2012 and is currently pursuing a Co-Existence Agreement in the form attached to said letter, which we expect to have executed within the next three (3) weeks.
B. Inquiry on Significance. The numeral “31” does not have any significance in the beer trade or industry, per se. However, as applied to the goods described in its proposed application, namely beer, Applicant chose this numeral to uniquely denote the holiday recognized as Halloween, which occurs on October 31st each year. “31” is a seasonally brewed beer, released each October 31st, and ascribing a fall theme.
Halloween falls on October 31st each year in North America and other parts of the world. This is why Applicant has chosen “31” as its mark for its seasonal beer, released on October 31st and sold only at that time of year. Like many other holidays, Halloween has evolved and changed throughout history. Over 2,000 years ago people called the Celts lived in what is now Ireland, the UK, and parts of Northern France. November 1 was their New Year's Day. They believed that the night before the New Year (October 31) was a time when the living and the dead came together. Halloween costumes are traditionally related to ghosts, skeletons, witches, and devils. Black and Orange are the famous color for this day. The Jack-o-lantern is the festival light for Halloween. Pumpkins are used as Jack-o-lanterns. This mark for this beer brewed and released only at this time of year in conjunction with October fests and Pumpkin fests is significant to this season. This is why it is significant to use the numeral “31” as its mark. No other numeral would have this specific significance to this season.
C. Prior Pending Application. There was also a prior pending Application, which predated our submission date, for the mark “LA 31” under Serial No. 85442617, and such prior applicant has been granted registration on June 12, 2012 under Registration No. 4157265. Consequently, because this Registration may present a bar to Applicant’s Registration, Applicant is seeking a Co-Existence Agreement with Bayou Teche Brewing, the Owner of the Mark, LA 31, out of Arnaudville, Louisiana such that both parties would agree to the registration of their marks, pursuant to its request letter to such Owner of September 14, 2012 and Applicant is currently pursuing a Co-Existence Agreement in the form attached to said letter, which we expect to have executed within the next three (3) weeks.
|
|
| EVIDENCE SECTION | |
| EVIDENCE FILE NAME(S) | |
| JPG FILE(S) | \\TICRS\EXPORT16\IMAGEOUT 16\854\799\85479933\xml1\ ROA0002.JPG |
| ORIGINAL PDF FILE | evi_20759162242-135028024_._PALE_31_Co_Existence_Agreement.pdf |
| CONVERTED PDF FILE(S) (7 pages) |
\\TICRS\EXPORT16\IMAGEOUT16\854\799\85479933\xml1\ROA0003.JPG |
| \\TICRS\EXPORT16\IMAGEOUT16\854\799\85479933\xml1\ROA0004.JPG | |
| \\TICRS\EXPORT16\IMAGEOUT16\854\799\85479933\xml1\ROA0005.JPG | |
| \\TICRS\EXPORT16\IMAGEOUT16\854\799\85479933\xml1\ROA0006.JPG | |
| \\TICRS\EXPORT16\IMAGEOUT16\854\799\85479933\xml1\ROA0007.JPG | |
| \\TICRS\EXPORT16\IMAGEOUT16\854\799\85479933\xml1\ROA0008.JPG | |
| \\TICRS\EXPORT16\IMAGEOUT16\854\799\85479933\xml1\ROA0009.JPG | |
| ORIGINAL PDF FILE | evi_20759162242-135028024_._LA_31_Co_Existence_Agreement.pdf |
| CONVERTED PDF FILE(S) (8 pages) |
\\TICRS\EXPORT16\IMAGEOUT16\854\799\85479933\xml1\ROA0010.JPG |
| \\TICRS\EXPORT16\IMAGEOUT16\854\799\85479933\xml1\ROA0011.JPG | |
| \\TICRS\EXPORT16\IMAGEOUT16\854\799\85479933\xml1\ROA0012.JPG | |
| \\TICRS\EXPORT16\IMAGEOUT16\854\799\85479933\xml1\ROA0013.JPG | |
| \\TICRS\EXPORT16\IMAGEOUT16\854\799\85479933\xml1\ROA0014.JPG | |
| \\TICRS\EXPORT16\IMAGEOUT16\854\799\85479933\xml1\ROA0015.JPG | |
| \\TICRS\EXPORT16\IMAGEOUT16\854\799\85479933\xml1\ROA0016.JPG | |
| \\TICRS\EXPORT16\IMAGEOUT16\854\799\85479933\xml1\ROA0017.JPG | |
| DESCRIPTION OF EVIDENCE FILE | A copy of the specimen tap handle for 31. A copy of the Co-Existence Agreement being sought between Firestone Walker LLC, owner of PALE 31 and Applicant and the transmittal letter sent to Rod S. Berman, Esquire, its Attorney of Record. A copy of the Co-Existence Agreement being sough between Bayou Teche Brewing, LLC, owner of LA 31 and Applicant and the transmittal letter to such Owner, as there is no Attorney of Record for this Owner. |
| ADDITIONAL STATEMENTS SECTION | |
| MISCELLANEOUS STATEMENT | Please delete the disclaimer currently of record, namely "SPICED MUNICH DUNKEL". |
| SIGNATURE SECTION | |
| RESPONSE SIGNATURE | /Colleen Ferg Helmlinger/ |
| SIGNATORY'S NAME | Colleen Ferg Helmlinger |
| SIGNATORY'S POSITION | Attorney of Record, Maryland bar member |
| SIGNATORY'S PHONE NUMBER | 410-893-7503 |
| DATE SIGNED | 09/14/2012 |
| AUTHORIZED SIGNATORY | YES |
| FILING INFORMATION SECTION | |
| SUBMIT DATE | Fri Sep 14 14:06:10 EDT 2012 |
| TEAS STAMP | USPTO/ROA-XXX.XX.XXX.XXX- 20120914140610054305-8547 9933-490320c9147ba8ec8bae 177c93c6b5b44-N/A-N/A-201 20914135028024509 |
| PTO Form 1957 (Rev 9/2005) |
| OMB No. 0651-0050 (Exp. 07/31/2017) |
A. Likelihood of Confusion. A copy of the Tap Handle for 31 attached evidencing how this mark is currently being used in commerce without any consumer confusion in the marketplace since at least September of 2007. Applicant does not believe there is a likelihood of confusion between 31 as a micro brewed beer on the east coast, and PALE 31 on the west coast as a beer, out of Buellton, California. The consumers purchasing these beers are located in completely different regions of the country and therefore these goods will not be encountered by the same consumer purchasers, nor do they come from a common source. Applicant also does not believe there would be any confusion as to the source of the beers because 31 is brewed from DuClaw Brewery, LLC, a microbrewery of beers and it is distributed as depicted on the attached tap handle that denotes a specific beer product (goods), which is a spiced munich dunkel. While the PALE 31 manufactured by Firestone Walker LLC (Firestone, is actually a California pale ale.
The proposed mark 31 consists of standard characters, without claim to any particular font, style, size, or color. Tap Handle displaying the number "31" in all blocked numbers with a break/space in the upper and lower curved portion of the number "3".
While the above marks may be appear to be highly similar, and the goods and services may appear to be identical, namely beer, for the reasons stated above, Applicant is seeking a Co-Existence Agreement with Firestone such that both parties would agree to the registration based upon the distinctions in the use of the trademark as described above, pursuant to its request letter to Firestone’s Attorney of Record Rod Berman, dated September 14, 2012 and is currently pursuing a Co-Existence Agreement in the form attached to said letter, which we expect to have executed within the next three (3) weeks.
B. Inquiry on Significance. The numeral “31” does not have any significance in the beer trade or industry, per se. However, as applied to the goods described in its proposed application, namely beer, Applicant chose this numeral to uniquely denote the holiday recognized as Halloween, which occurs on October 31st each year. “31” is a seasonally brewed beer, released each October 31st, and ascribing a fall theme.
Halloween falls on October 31st each year in North America and other parts of the world. This is why Applicant has chosen “31” as its mark for its seasonal beer, released on October 31st and sold only at that time of year. Like many other holidays, Halloween has evolved and changed throughout history. Over 2,000 years ago people called the Celts lived in what is now Ireland, the UK, and parts of Northern France. November 1 was their New Year's Day. They believed that the night before the New Year (October 31) was a time when the living and the dead came together. Halloween costumes are traditionally related to ghosts, skeletons, witches, and devils. Black and Orange are the famous color for this day. The Jack-o-lantern is the festival light for Halloween. Pumpkins are used as Jack-o-lanterns. This mark for this beer brewed and released only at this time of year in conjunction with October fests and Pumpkin fests is significant to this season. This is why it is significant to use the numeral “31” as its mark. No other numeral would have this specific significance to this season.
C. Prior Pending Application. There was also a prior pending Application, which predated our submission date, for the mark “LA 31” under Serial No. 85442617, and such prior applicant has been granted registration on June 12, 2012 under Registration No. 4157265. Consequently, because this Registration may present a bar to Applicant’s Registration, Applicant is seeking a Co-Existence Agreement with Bayou Teche Brewing, the Owner of the Mark, LA 31, out of Arnaudville, Louisiana such that both parties would agree to the registration of their marks, pursuant to its request letter to such Owner of September 14, 2012 and Applicant is currently pursuing a Co-Existence Agreement in the form attached to said letter, which we expect to have executed within the next three (3) weeks.
