To: | Myomo, Inc. (docketing@fgd-law.com) |
Subject: | U.S. TRADEMARK APPLICATION NO. 85966843 - MYOPRO - N/A |
Sent: | 8/28/2013 8:50:28 PM |
Sent As: | ECOM116@USPTO.GOV |
Attachments: | Attachment - 1 Attachment - 2 Attachment - 3 Attachment - 4 Attachment - 5 Attachment - 6 Attachment - 7 Attachment - 8 Attachment - 9 Attachment - 10 Attachment - 11 Attachment - 12 Attachment - 13 Attachment - 14 Attachment - 15 Attachment - 16 Attachment - 17 Attachment - 18 Attachment - 19 Attachment - 20 Attachment - 21 Attachment - 22 Attachment - 23 Attachment - 24 Attachment - 25 Attachment - 26 |
UNITED STATES PATENT AND TRADEMARK OFFICE (USPTO)
OFFICE ACTION (OFFICIAL LETTER) ABOUT APPLICANT’S TRADEMARK APPLICATION
U.S. APPLICATION SERIAL NO. 85966843
MARK: MYOPRO
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CORRESPONDENT ADDRESS: |
CLICK HERE TO RESPOND TO THIS LETTER: http://www.gov.uspto.report/trademarks/teas/response_forms.jsp
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APPLICANT: Myomo, Inc.
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CORRESPONDENT’S REFERENCE/DOCKET NO: CORRESPONDENT E-MAIL ADDRESS: |
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OFFICE ACTION
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: 8/28/2013
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 referenced application has been reviewed by the assigned trademark examining attorney. Applicant must respond timely and completely to the issue below. 15 U.S.C. §1062(b); 37 C.F.R. §§2.62, 2.65(a); TMEP §§711, 718.03.
I. REFUSAL—LIKELIHOOD OF CONFUSION
Registration of the applied-for mark is refused because of a likelihood of confusion with the mark in U.S. Registration No. 2010256. Trademark Act Section 2(d), 15 U.S.C. §1052(d); see TMEP §§1207.01 et seq. See the enclosed registration.
Taking into account the relevant du Pont factors, a likelihood of confusion determination in this case involves a two-part analysis. The marks are compared for similarities in their appearance, sound, connotation and commercial impression. TMEP §§1207.01, 1207.01(b). The goods and services are compared to determine whether they are similar or commercially related or travel in the same trade channels. See Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d 1156, 1164-65, 64 USPQ2d 1375, 1380 (Fed. Cir. 2002); Han Beauty, Inc. v. Alberto-Culver Co., 236 F.3d 1333, 1336, 57 USPQ2d 1557, 1559 (Fed. Cir. 2001); TMEP §§1207.01, 1207.01(a)(vi).
The applicant’s proposed mark is MYOPRO in standard character form.
The registrant’s mark is MYOPRO in typed form.
The respective marks, both MYOPRO, are identical in every element, sound, appearance and meaning, rendering confusion likely.
The respective goods need only be “related in some manner and/or if the circumstances surrounding their marketing [be] such that they could give rise to the mistaken belief that [the goods and/or services] emanate from the same source.” Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 1369, 101 USPQ2d 1713, 1722 (Fed. Cir. 2012) (quoting 7-Eleven Inc. v. Wechsler, 83 USPQ2d 1715, 1724 (TTAB 2007)); Gen. Mills Inc. v. Fage Dairy Processing Indus. SA, 100 USPQ2d 1584, 1597 (TTAB 2011); TMEP §1207.01(a)(i).
The applicant’s goods are:
“Braces for limbs and joints, for medical use.”
The registrant’s goods are:
“Dietary and nutritional supplement containing nutrients, namely proteins, carbohydrates, and vitamins.”
The respective goods, orthopedic devices in the nature of braces for limbs and joints, and dietary supplements, are goods which travel along the same channels of trade rendering confusion likely. See the attached World Wide Web evidence in this regard. For example, see the attached World Wide Web excerpt from Wright Chiropractic offering “one stop” shopping for orthopedic braces as well as supplements. See also the attached World Wide Web excerpt from Preferred Health Choice also offering orthopedic braces and supplements, among others. Moreover, see the attached evidence from the Automated X-Search System, e.g. see U.S. Registration Number 4368289 attached for dietary and nutritional supplements as well as for orthopedic braces. Furthermore, braces and supplements can be used by the same consumer. For example, a consumer with osteoarthritis may utilize a brace as well as supplements to alleviate joint pain. See the attached World Wide Web excerpt from the Department of Orthopedic Surgery of the University of California in this regard. In that the respective goods travel along the same channels of trade, and can be used conjointly, confusion is likely. This is especially true considering the identical and distinctive nature of the respective MYOPRO marks. In this regard, please note that where the marks of the respective parties are identical or virtually identical, as here, the relationship between the relevant goods need not be as close to support a finding of likelihood of confusion. See In re Shell Oil Co., 992 F.2d 1204, 1207, 26 USPQ2d 1687, 1689 (Fed. Cir. 1993); In re Davey Prods. Pty Ltd., 92 USPQ2d 1198, 1202 (TTAB 2009); In re Thor Tech, Inc., 90 USPQ2d 1634, 1636 (TTAB 2009); TMEP §1207.01(a).
II. CONCLUSION
/Zhaleh Delaney/
Trademark Attorney
USPTO
571-272-9153
Zhaleh.Delaney@uspto.gov
TO RESPOND TO THIS LETTER: Go to http://www.gov.uspto.report/trademarks/teas/response_forms.jsp. Please wait 48-72 hours from the issue/mailing date before using the Trademark Electronic Application System (TEAS), to allow for necessary system updates of the application. For technical assistance with online forms, e-mail TEAS@uspto.gov. For questions about the Office action itself, please contact the assigned trademark examining attorney. E-mail communications will not be accepted as responses to Office actions; therefore, do not respond to this Office action by e-mail.
All informal e-mail communications relevant to this application will be placed in the official application record.
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 the Trademark Status and Document Retrieval (TSDR) system at http://tsdr.gov.uspto.report/. Please keep a copy of the TSDR status screen. If the status shows no change for more than six months, contact the Trademark Assistance Center by e-mail at TrademarkAssistanceCenter@uspto.gov or 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/trademarks/teas/correspondence.jsp.