Petition to Revive Notice of Deficiency

UNITED STATES PATENT AND TRADEMARK OFFICE

 

 

 

PETITION TO REVIVE

NOTICE OF DEFICIENCY

 

U. S. Trademark Application Serial Number  85/883238

 

Dear Sir:

 

The petition to revive the above identified trademark application submitted on March 16, 2015, was automatically granted in error and is hereby rescinded.  The statement of use and extension request submitted with the petition cannot be accepted because the name identified as the owner in the document is Nutraceutical Wellness LLC, but the owner of record for the application is Nutraceutical Wellness Inc.  This difference in the owner name must be explained.  Trademark Rule 2.66, 37 C.F.R. §2.66; TMEP §1714.

 

You are hereby provided THIRTY DAYS from the mailing date of this letter to submit a satisfactory explanation clarifying ownership of the application or a substitute statement of use.  If the required item(s) are not received on or before the expiration of the thirty-day period, the petition will be denied, without consideration on the merits and the application will remain abandoned.  37 C.F.R. §2.66.  A response to this Office action must still be submitted, even if an assignment or other document of title is recorded.

 

Review the three possible scenarios below for the required response.

 

(1) CHANGE IN OWNERSHIP:

 

If there was a change of ownership from “Nutraceutical Wellness Inc.” to “Nutraceutical Wellness LLC,” evidence to establish that the filer of the statement of use is the current owner of the application must be submitted, as follows:

 

(a)  Record an assignment or other document of title with the Assignment Recordation Branch showing clear chain of title to the party filing the statement of use, and promptly notifying the undersigned that such documentation has been recorded.  To expedite recordation, new owners are encouraged to file requests for recordation electronically through ETAS, on the USPTO website at http://etas.uspto.gov.; or

 

(b)  Submit evidence of ownership, in the form of a document transferring ownership from one party to another, or an explanation, supported by an affidavit or signed declaration under 37 C.F.R. §2.20, that a valid transfer of legal title occurred prior to filing the statement of use.  Please note that a new owner must record the assignment, change of name, or other document affecting title with the Assignment Recordation Branch of the USPTO in order for the name to be updated and to obtain a certificate of registration in the name of the new owner (or in applicant’s new name).  37 C.F.R. §3.85. 

 

(2)  FILER WAS NOT OWNER: 

 

If the filer of the statement of use was not the owner of the mark at the time of filing, a substitute statement of use must be submitted by October 1, 2015.  If the substitute statement of use is not received by that date, the fee for the third  and fourth extension requests must also be submitted. 

 

For example, if the president of a corporation identifies themselves as the owner instead of the name of the corporation, a substitute statement of use must be submitted.  See TMEP §1201.02(c) for additional examples of non-correctible errors.  A substitute statement of use is attached for your convenience. 

 

(3)  CORRECTIBLE MISTAKE IN NAME OF OWNER:

 

In the limited situation where the filer of the statement of use is, in fact, the owner of the mark, and is attempting to correct the name of the applicant, the applicant must submit an explanation of the nature of the mistake.  For example, minor clerical errors such as the mistaken addition or omission of “The” or “Inc.” in the applicant’s name may be corrected by amendment, as long as this does not result in a change of legal entity.  However, change of a significant portion of the applicant’s name is not considered a minor clerical error.  An application filed in the name of the wrong party is void and cannot be corrected by amendment.  See TMEP §1201.02(c) for additional examples of correctible errors.

 

Please contact me at the phone number provided if you have questions about how to respond to this letter. 

 

 

Sincerely,

 

/Carol P. Smith/

Paralegal Specialist

Office of Petitions

(571) 272-9578 ph

(571) 273-9578 fax

carol.smith@uspto.gov

 

 

RESPONDING TO THIS NOTICE OF DEFICIENCY ONLINE:

 

You are encouraged to use the “Response to Petition to Revive Deficiency Letter” online response form available at http://www.gov.uspto.report/teas/eTEASpageD.htm, but please wait 48-72 hours before responding if you received notification of the Notice of Deficiency by e-mail.  For technical assistance with the online form, please e-mail TEAS@uspto.gov.

 

RESPONDING TO THIS NOTICE OF DEFICIENCY ON PAPER:

 

If responding by mail, your response should be sent to the Return Address listed above and should include a title “Response to Petition to Revive Notice of Deficiency.”

 

Use a “CERTIFICATE OF MAILING”

 

The filing date of a document in the United States Patent and Trademark Office (USPTO) is the date of receipt in the Office, not the date of deposit in the mail.  Trademark Rule 2.195.  To avoid lateness due to mail delay, include a signed and dated certificate of mailing with your response.

 

Certificate of mailing under Trademark Rule 2.197:

 

I hereby certify that this correspondence is being deposited with the United States Postal Service as first class mail postage prepaid in an envelope addressed to: Commissioner for Trademarks, P.O. Box 1451, Alexandria, Virginia 22313-1451, on __________________ (Date).

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