| PTO Form 1822 (Rev 11/2007) |
| OMB No. 0651-0050 (Exp. 07/31/2017) |
| Input Field |
Entered |
|---|---|
| SERIAL NUMBER | 85496133 |
| LAW OFFICE ASSIGNED | LAW OFFICE 112 |
| MARK SECTION | |
| MARK | http://tess2.gov.uspto.report/ImageAgent/ImageAgentProxy?getImage=85496133 |
| LITERAL ELEMENT | LVP |
| 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. |
| PENDING SERIAL NUMBER(S) | |
| Serial number(s) 85428905 should not be used as a citation(s) under Section 2(d) of the Trademark Act, in the event that said serial number(s) mature(s) into a registration(s). The applicant hereby requests removal of this application from suspension, based on the following arguments. In the event that the examining attorney is not persuaded by these arguments, the applicant hereby requests that this application be returned to suspended status, awaiting ultimate disposition of the referenced serial number(s). | |
| ARGUMENT(S) | |
Response to Suspension Inquiry or Letter of SuspensionDear Trademark Commissioner: This responds to the Suspension Notice dated March 26, 2012. Consent Agreement In light of the attached Consent Agreement between Applicant and the owner of Application No. 85/428905, Applicant requests that the objection to registration be withdrawn. (See Exhibit A). As noted in the agreement, the parties agree that no confusion is likely. Pursuant to TMEP 1207.01(d)(viii), great weight must be given to a proper consent agreement. The Examining Attorney should not interpose his or her own judgment concerning likelihood of confusion when an applicant and registrant have entered into a credible consent agreement and, on balance, the other factors do not dictate a finding of likelihood of confusion. Id. In In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 1363, 177 USPQ 563, 568 (C.C.P.A. 1973), the Court of Customs and Patent Appeals stated as follows: [W]hen those most familiar with use in the marketplace and most interested in precluding confusion enter agreements designed to avoid it, the scales of evidence are clearly tilted. It is at least difficult to maintain a subjective view that confusion will occur when those directly concerned say it won't. A mere assumption that confusion is likely will rarely prevail against uncontroverted evidence from those on the firing line that it is not. As such, Applicant respectfully requests this suspension be withdrawn, and Applicant's application proceed to publication. CONCLUSION For the foregoing reasons and authorities, Applicant respectfully requests that the subject application be allowed to publish. Applicant has responded to all matters in the Office Action and should the Examining Attorney have any questions with regard to this Response or to any matter relating to this Application, in general, a telephone call to Applicant’s undersigned representative at the telephone number listed below would be greatly appreciated. Respectfully submitted, /s/ ofleming BARNES & THORNBURG, LLP Olivia M. Fleming 11 South Meridian Street Indianapolis, Indiana 46204 317-231-1313 317-231-6444 Attorney for Applicant ofleming@btlaw.com |
|
| ARGUMENT FILE NAME(S) | |
| ORIGINAL PDF FILE | PE_209436781-144325143_._20120410141036.pdf |
| CONVERTED PDF FILE(S) (4 pages) |
\\TICRS\EXPORT11\IMAGEOUT11\854\961\85496133\xml3\RSI0002.JPG |
| \\TICRS\EXPORT11\IMAGEOUT11\854\961\85496133\xml3\RSI0003.JPG | |
| \\TICRS\EXPORT11\IMAGEOUT11\854\961\85496133\xml3\RSI0004.JPG | |
| \\TICRS\EXPORT11\IMAGEOUT11\854\961\85496133\xml3\RSI0005.JPG | |
| SIGNATURE SECTION | |
| RESPONSE SIGNATURE | /ofleming/ |
| SIGNATORY'S NAME | Olivia M. Fleming |
| SIGNATORY'S POSITION | Attorney of Record, Indiana Bar Member |
| SIGNATORY'S PHONE NUMBER | 317-231-6444 |
| DATE SIGNED | 04/10/2012 |
| AUTHORIZED SIGNATORY | YES |
| FILING INFORMATION SECTION | |
| SUBMIT DATE | Tue Apr 10 14:52:59 EDT 2012 |
| TEAS STAMP | USPTO/RSI-XXX.XX.XX.XX-20 120410145259778846-854961 33-490974324d38458a4f738e a3dee7c9f83e8-N/A-N/A-201 20410144325143042 |
| PTO Form 1822 (Rev 11/2007) |
| OMB No. 0651-0050 (Exp. 07/31/2017) |
Dear Trademark Commissioner:
This responds to the Suspension Notice dated March 26, 2012.
Consent Agreement
In light of the attached Consent Agreement between Applicant and the owner of Application No. 85/428905, Applicant requests that the objection to registration be withdrawn. (See Exhibit A). As noted in the agreement, the parties agree that no confusion is likely.
Pursuant to TMEP 1207.01(d)(viii), great weight must be given to a proper consent agreement. The Examining Attorney should not interpose his or her own judgment concerning likelihood of confusion when an applicant and registrant have entered into a credible consent agreement and, on balance, the other factors do not dictate a finding of likelihood of confusion. Id. In In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 1363, 177 USPQ 563, 568 (C.C.P.A. 1973), the Court of Customs and Patent Appeals stated as follows:
[W]hen those most familiar with use in the marketplace and most interested in precluding confusion enter agreements designed to avoid it, the scales of evidence are clearly tilted. It is at least difficult to maintain a subjective view that confusion will occur when those directly concerned say it won't. A mere assumption that confusion is likely will rarely prevail against uncontroverted evidence from those on the firing line that it is not.
As such, Applicant respectfully requests this suspension be withdrawn, and Applicant's application proceed to publication.
CONCLUSION
For the foregoing reasons and authorities, Applicant respectfully requests that the subject application be allowed to publish. Applicant has responded to all matters in the Office Action and should the Examining Attorney have any questions with regard to this Response or to any matter relating to this Application, in general, a telephone call to Applicant’s undersigned representative at the telephone number listed below would be greatly appreciated.
Respectfully submitted,
/s/ ofleming
BARNES & THORNBURG, LLP
Olivia M. Fleming
11 South Meridian Street
Indianapolis, Indiana 46204
317-231-1313
317-231-6444
Attorney for Applicant
ofleming@btlaw.com
