Response to Office Action

PTO Form 1957 (Rev 9/2005)

OMB No. 0651-0050 (Exp. 07/31/2017)

---

PTO Form 1957 (Rev 9/2005)

OMB No. 0651-0050 (Exp. 07/31/2017)

Response to Office Action

To the Commissioner for Trademarks:

Application serial no. 85921411 GIGA(Standard Characters, see http://tess2.gov.uspto.report/ImageAgent/ImageAgentProxy?getImage=85921411) has been amended as follows:

ARGUMENT(S)
In response to the substantive refusal(s), please note the following:

Serial No. 85/921,411

Trademark Examining Attorney: Martha L. Fromm, Law Office 106

Mailing Date of Office Action:  August 27, 2013

Applicant’s Telephone Number: 970-492-1100

1.      TRADEMARK ACT SECTIONS 1, 2 AND 45 REFUSAL

The Examining Attorney has stated that the Registration is refused because the applied-for-mark is a varietal name for the identified goods and as such, does not function as a trademark to identify and distinguish applicant’s goods from those of others and to indicate the source of applicant’s goods.  Applicant respectfully submits that the description of the goods associated with the applied-for-mark has been amended to “Live plants excluding barley, corn, beans, radishes and white clover; living plants excluding barley, corn, beans, radishes and white clover.”   Withdrawal of this rejection is respectfully requested.

In the event that the Examiner finds remaining impediments to a prompt allowance of this application that may be clarified through a telephone interview, or which may be overcome by an Examiner’s Amendment, the Examiner is requested to contact the undersigned attorney.

Applicant respectfully requests that the application be allowed for publication.

CLASSIFICATION AND LISTING OF GOODS/SERVICES
Applicant proposes to amend the following class of goods/services in the application:
Current: Class 031 for Live plants; Living plants
Original Filing Basis:
Filing Basis: Section 1(a), Use in Commerce: The applicant is using the mark in commerce, or the applicant's related company or licensee is using the mark in commerce, on or in connection with the identified goods and/or services. 15 U.S.C. Section 1051(a), as amended. The mark was first used at least as early as 04/00/2012 and first used in commerce at least as early as 04/00/2012 , and is now in use in such commerce.

Proposed:
Tracked Text Description: Live plants; Live plants excluding barley, corn, beans, radishes and white clover; Living plants; Living plants excluding barley, corn, beans, radishes and white cloverClass 031 for Live plants excluding barley, corn, beans, radishes and white clover; Living plants excluding barley, corn, beans, radishes and white clover
Filing Basis: Section 1(a), Use in Commerce: The applicant is using the mark in commerce, or the applicant's related company or licensee is using the mark in commerce, on or in connection with the identified goods and/or services. 15 U.S.C. Section 1051(a), as amended. The mark was first used at least as early as 04/00/2012 and first used in commerce at least as early as 04/00/2012 , and is now in use in such commerce.
SIGNATURE(S)
Response Signature
Signature: /James M. Weatherly/     Date: 08/28/2013
Signatory's Name: James M. Weatherly
Signatory's Position: Attorney of record, Colorado Bar member

Signatory's Phone Number: 970-492-1100

The signatory has confirmed that he/she is an attorney who is a member in good standing of the bar of the highest court of a U.S. state, which includes the District of Columbia, Puerto Rico, and other federal territories and possessions; and he/she is currently the applicant's attorney or an associate thereof; and to the best of his/her knowledge, if prior to his/her appointment another U.S. attorney or a Canadian attorney/agent not currently associated with his/her company/firm previously represented the applicant in this matter: (1) the applicant has filed or is concurrently filing a signed revocation of or substitute power of attorney with the USPTO; (2) the USPTO has granted the request of the prior representative to withdraw; (3) the applicant has filed a power of attorney appointing him/her in this matter; or (4) the applicant's appointed U.S. attorney or Canadian attorney/agent has filed a power of attorney appointing him/her as an associate attorney in this matter.

        
Serial Number: 85921411
Internet Transmission Date: Wed Aug 28 12:26:22 EDT 2013
TEAS Stamp: USPTO/ROA-XX.XX.XXX.XX-20130828122622250
907-85921411-500c2c3ccfc75ece40c273cbb27
319abf735e5615fa2da29fb35180612823d9-N/A
-N/A-20130828114631647786