Response to Office Action

PTO Form 1957 (Rev 9/2005)

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

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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. 85814042 MCCAIN (Stylized and/or with Design, see http://tess2.gov.uspto.report/ImageAgent/ImageAgentProxy?getImage=85814042) has been amended as follows:

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

AMENDMENT

This amendment is being filed in response to the Office Action dated April 24, 2013. 

Please amend the present application to add the following claim of ownership of additional registrations owned by Applicant: 

-- APPLICANT IS THE OWNER OF U.S. REGISTRATION NOS. 1103535, 1409644, 1763089, 1796018, 1820077, 1834807, AND 3158142. --

Please amend the recitation of goods and services by deleting the present recitation of goods and services and substituting the following:

-- INTERNATIONAL CLASS 29: PROCESSED POTATO AND POTATO PRODUCTS NAMELY, BAKED, ROASTED, MASHED, DRIED, INSTANT, FRIED, FRENCH FRIED, BATTERED, EXTRUDED, FRESH, CHILLED, PACKAGED AND/OR FROZEN POTATOES, BABY POTATOES AND SWEET POTATOES; PROCESSED POTATO SPECIALTIES, NAMELY, CRISPS, CHIPS, POTATO WEDGES, DICED HASH BROWNS, HASH BROWN PATTIES, LATTICE-CUT CHIPS, POTATO PATTIES, POTATO SKINS AND SHELLS, STUFFED POTATO SKINS AND SHELLS, DICED POTATO CUBES, POTATO PUFFS, POTATO CROQUETTES, INSTANT POTATO FLAKES, MASHED POTATO MIX AND PEELED POTATOES; SNACK FOODS, NAMELY, MEAT, FISH, POULTRY, MEAT EXTRACTS, FRUIT, VEGETABLES, EGG, CHEESE, AND/OR POTATO BASED SNACK FOODS; SNACK FOODS MADE FROM VEGETABLES, MEAT, FISH, POULTY, CHEESE, AND/OR POTATO, NAMELY, TAQUITOS, SPRING ROLLS, QUESADILLA ROLLS, HASH BROWN STICKS, DUMPLINGS, SAMOSAS, BREADED AND/OR BATTERED ONION RINGS AND STRAWS, BREADED AND BATTERED VEGETABLES, BATTERED CHEESE, CHEESE STICKS, PATES AND SEAFOOD MOUSSES; FROZEN AND PREPARED NON-DAIRY DESSERTS, NAMELY, DESSERTS MADE OF FRUITS, FROZEN FRUITS, AND FRUIT SALAD; APPETIZERS, NAMELY, MEAT, FISH, POULTRY, MEAT EXTRACTS, FRUITS, VEGETABLES, EGG, CHEESE, AND/OR POTATO BASED APPETIZERS; APPETIZERS MADE FROM VEGETABLES, meat, fish, poultry, cheese, and/or potato, namely, taquitos, spring rolls, quesadilla rolls, hash brown sticks, dumplings, samosas, breaded and/or battered onion rings and straws, breaded and battered vegetables, battered cheese, cheese sticks, pates and seafood mousses; dips, namely, meat, seafood, and/or vegetable based dips, dairy based dips, sauces used as dips, and snack food dips; fruits and vegetables, namely, frozen, chilled, dehydrated, battered and/or processed fruits and vegetables; frozen prepared meals, namely, frozen or chilled prepared meals containing or consisting primarily of vegetables, meat, poultry, potatoes, eggs, cheese, fish, and/or seafood; breakfast foods, namely, meat, fish, seafood, poultry, meat extracts, fruits, vegetables, eggs, potato, and/or cheese based breakfast foods; potato pancakes; hash browns; breakfast patties containing egg, meat, vegetables or cheese, and eggs; prepared meaLs and entrees, namely, prepared meals and entrees based of meat, fish, seafood, poultry, meat extracts, fruits, vegetables, eggs, potato, and/or cheese; and soups.

INTERNATIONAL CLASS 30:  pizza; snack foods, namely, cereal and/or rice based snack foods, namely, SNACK FOODS containing or consisting of dough, pasta, pastry, pizza, garlic breaD and garlic fingers, and dough enrobed snack foods consisting of a dough-based wrapper with pizza filling; appetizers, namely, appetizers having a cereal and/or rice base, namely, appetizers containing or consisting of dough, pasta, pastry, pizza, garlic breaD, and garlic fingers, and dough enrobed appetizers consisting of a dough-based wrapper with pizza fillings; frozen and prepared desserts, namely, bakery goods, bakery desserts, pies, cakes, pastries, French toast, waffles, fruit and ice cream pies, and frozen confections; frozen and prepared pastries; ice cream; frozen prepared meals, namely, meals containing or consisting primarily of pasta, pizza and/or rice; breakfast foods, namely, French toast, pancakes, waffles, cereals, oatmeal and creamed wheat cereals; prepared sandwiches, NAMELY, filled wraps AND bread with filling; prepared meals and entrees, namely, cereal and rice based prepared meals and entrees, namely, entrees containing or consisting of pasta, pizza, rice, sandwiches, and dough enrobed entrees consisting of dough-based wrapper with pizza filling; and powders and mixes used in preparation of non-alcoholic beverages, soft drinks and smoothies.

International Class 35:  food SERVICE services, namely, wholesaling of foods for use in food service channels of trade, namely, services provided to retailers and wholesalers in providing foods for subsequent resale; informational services, namely, providing information in the field of food, healthy eating and nutrition through the use of printed material, electronic, electronic materials or through websites; information services, namely, providing a website featuring information in the field of food, healthy eating and nutrition; vending machine services featuring food; and coupon services and contest services for promoting the goods and services of others.

Reconsideration and allowance of the present application is respectfully requested.

REMARKS

Pursuant to the Examining Attorney's instructions, Applicant has amended the application indicating its ownership of other U.S. trademark registrations.  Accordingly, Applicant requests that the requirement be withdrawn.

With respect to the Examining Attorney's request for clarification of the identification and classification of goods and services, Applicant has deleted the present recitation of goods and services and has substituted therefore an amended recitation of goods and services.  In this regard, Applicant now seeks registration in International Class 29, International Class 30, and International Class 35.  Applicant has amended its recitation of goods and services based on the Examining Attorney's comments.  In that regard, Applicant has added a more detailed description of goods and services as requested, has moved certain goods to a new class, and has deleted certain descriptions of goods and services which the Examining Attorney was of the opinion were vague, indefinite, or needed reclassification to a class that Applicant does not choose to add at this time.  With respect to the addition of goods in International Class 30, Applicant has a bonafide intention to use the mark in commerce on or in connection with the identified goods and asserts that a claim of priority is based on Canadian Application No. 1,584,719, filed 07/04/2012.  To the extent any additional, fees are required with respect to the addition of International Class 30 to the present application, Applicant requests that such fees be charged to Deposit Account No. 12-1095.  Based upon the above amendments to the recitation of goods and services, Applicant respectfully requests the Examining Attorney to now withdraw its objection to the classification of goods and services set forth in the initial Office Action.

The Examining Attorney has also requested Applicant to elect whether it wants to continue to prosecute this application under Trademark Act Section 1(b) (15 U.S.C. § 1051(b)) or under a claim of priority pursuant to Section 44(d) (15 U.S.C. § 1126 (d)).  At this point in time, Applicant wants to maintain both bases for registration.  At the time the Examining Attorney indicates that the application is allowable, Applicant will make the election as to how it wants to proceed.

Based upon the foregoing amendments and comments, and further based upon the fact that the Examining Attorney, after a search of the Trademark Office's database of registered and pending marks, has found no conflicting marks that would bar registration under Trademark Act Section 2(d), Applicant respectfully requests that its application be allowed.  To the extent there are any issues with respect to the application and the Examining Attorney wishes to discuss the same, Applicant's counsel can be reached at (908) 518-6314.  Reconsideration and allowance of the present application is respectfully requested.

CLASSIFICATION AND LISTING OF GOODS/SERVICES
Applicant proposes to amend the following class of goods/services in the application:
Current: Class 029 for Potatoes and potato products, pizza, potato snack foods, snack foods, frozen and prepared desserts and pastries, and ice cream, appetizers, dips, fruits and vegetables, frozen prepared meals, breakfast foods, French toast, pancakes and waffles, prepared meals and entrees, prepared sandwich products, non-alcoholic beverages, smoothies, powders and mixes, soups
Original Filing Basis:
Filing Basis: Section 1(b), Intent to Use: For a trademark or service mark application: As of the application filing date, the applicant had a bona fide intention, and was entitled, to use the mark in commerce on or in connection with the identified goods/services in the application. For a collective trademark, collective service mark, or collective membership mark application: As of the application filing date, the applicant had a bona fide intention, and was entitled, to exercise legitimate control over the use of the mark in commerce by members on or in connection with the identified goods/services/collective membership organization. For a certification mark application: As of the application filing date, the applicant had a bona fide intention, and was entitled, to exercise legitimate control over the use of the mark in commerce by authorized users in connection with the identified goods/services, and the applicant will not engage in the production or marketing of the goods/services to which the mark is applied, except to advertise or promote recognition of the certification program or of the goods/services that meet the certification standards of the applicant.

Filing Basis: Section 44(d), Priority based on foreign filing: For a trademark or service mark application: As of the application filing date, the applicant had a bona fide intention, and was entitled, to use the mark in commerce on or in connection with the identified goods/services, and asserts a claim of priority based upon a foreign application. For a collective trademark, collective service mark, or collective membership mark application: As of the application filing date, the applicant had a bona fide intention, and was entitled, to exercise legitimate control over the use of the mark in commerce by members on or in connection with the identified goods/services/collective membership organization, and asserts a claim of priority based upon a foreign application. For a certification membership mark application: As of the application filing date, the applicant had a bona fide intention, and was entitled, to exercise legitimate control over the use of the mark in commerce by authorized users in connection with the identified goods/services, the applicant will not engage in the production or marketing of the goods/services to which the mark is applied, except to advertise or promote recognition of the certification program or of the goods or services that meet the certification standards of the applicant, and the applicant asserts a claim of priority based upon a foreign application. Claim of priority is based on[ Canada application number 1,584,721 filed 07/04/2012]. 15 U.S.C.Section 1126(d), as amended.

Proposed:
Tracked Text Description: Potatoes and potato products, pizza, potato snack foods, snack foods, frozen and prepared desserts and pastries, and ice cream, appetizers, dips, fruits and vegetables, frozen prepared meals, breakfast foods, French toast, pancakes and waffles, prepared meals and entrees, prepared sandwich products, non-alcoholic beverages, smoothies, powders and mixes, soups; PROCESSED POTATO AND POTATO PRODUCTS NAMELY, BAKED, ROASTED, MASHED, DRIED, INSTANT, FRIED, FRENCH FRIED, BATTERED, EXTRUDED, FRESH, CHILLED, PACKAGED AND/OR FROZEN POTATOES, BABY POTATOES AND SWEET POTATOES; PROCESSED POTATO SPECIALTIES, NAMELY, CRISPS, CHIPS, POTATO WEDGES, DICED HASH BROWNS, HASH BROWN PATTIES, LATTICE-CUT CHIPS, POTATO PATTIES, POTATO SKINS AND SHELLS, STUFFED POTATO SKINS AND SHELLS, DICED POTATO CUBES, POTATO PUFFS, POTATO CROQUETTES, INSTANT POTATO FLAKES, MASHED POTATO MIX AND PEELED POTATOES; SNACK FOODS, NAMELY, MEAT, FISH, POULTRY, MEAT EXTRACTS, FRUIT, VEGETABLES, EGG, CHEESE, AND/OR POTATO BASED SNACK FOODS; SNACK FOODS MADE FROM VEGETABLES, MEAT, FISH, POULTY, CHEESE, AND/OR POTATO, NAMELY, TAQUITOS, SPRING ROLLS, QUESADILLA ROLLS, HASH BROWN STICKS, DUMPLINGS, SAMOSAS, BREADED AND/OR BATTERED ONION RINGS AND STRAWS, BREADED AND BATTERED VEGETABLES, BATTERED CHEESE, CHEESE STICKS, PATES AND SEAFOOD MOUSSES; FROZEN AND PREPARED NON-DAIRY DESSERTS, NAMELY, DESSERTS MADE OF FRUITS, FROZEN FRUITS, AND FRUIT SALAD; APPETIZERS, NAMELY, MEAT, FISH, POULTRY, MEAT EXTRACTS, FRUITS, VEGETABLES, EGG, CHEESE, AND/OR POTATO BASED APPETIZERS; APPETIZERS MADE FROM VEGETABLES, MEAT, FISH, POULTRY, CHEESE, AND/OR POTATO, NAMELY, TAQUITOS, SPRING ROLLS, QUESADILLA ROLLS, HASH BROWN STICKS, DUMPLINGS, SAMOSAS, BREADED AND/OR BATTERED ONION RINGS AND STRAWS, BREADED AND BATTERED VEGETABLES, BATTERED CHEESE, CHEESE STICKS, PATES AND SEAFOOD MOUSSES; DIPS, NAMELY, MEAT, SEAFOOD, AND/OR VEGETABLE BASED DIPS, DAIRY BASED DIPS, SAUCES USED AS DIPS, AND SNACK FOOD DIPS; FRUITS AND VEGETABLES, NAMELY, FROZEN, CHILLED, DEHYDRATED, BATTERED AND/OR PROCESSED FRUITS AND VEGETABLES; FROZEN PREPARED MEALS, NAMELY, FROZEN OR CHILLED PREPARED MEALS CONTAINING OR CONSISTING PRIMARILY OF VEGETABLES, MEAT, POULTRY, POTATOES, EGGS, CHEESE, FISH, AND/OR SEAFOOD; BREAKFAST FOODS, NAMELY, MEAT, FISH, SEAFOOD, POULTRY, MEAT EXTRACTS, FRUITS, VEGETABLES, EGGS, POTATO, AND/OR CHEESE BASED BREAKFAST FOODS; POTATO PANCAKES; HASH BROWNS; BREAKFAST PATTIES CONTAINING EGG, MEAT, VEGETABLES OR CHEESE, AND EGGS; PREPARED MEALS AND ENTREES, NAMELY, PREPARED MEALS AND ENTREES BASED OF MEAT, FISH, SEAFOOD, POULTRY, MEAT EXTRACTS, FRUITS, VEGETABLES, EGGS, POTATO, AND/OR CHEESE; AND SOUPSClass 029 for PROCESSED POTATO AND POTATO PRODUCTS NAMELY, BAKED, ROASTED, MASHED, DRIED, INSTANT, FRIED, FRENCH FRIED, BATTERED, EXTRUDED, FRESH, CHILLED, PACKAGED AND/OR FROZEN POTATOES, BABY POTATOES AND SWEET POTATOES; PROCESSED POTATO SPECIALTIES, NAMELY, CRISPS, CHIPS, POTATO WEDGES, DICED HASH BROWNS, HASH BROWN PATTIES, LATTICE-CUT CHIPS, POTATO PATTIES, POTATO SKINS AND SHELLS, STUFFED POTATO SKINS AND SHELLS, DICED POTATO CUBES, POTATO PUFFS, POTATO CROQUETTES, INSTANT POTATO FLAKES, MASHED POTATO MIX AND PEELED POTATOES; SNACK FOODS, NAMELY, MEAT, FISH, POULTRY, MEAT EXTRACTS, FRUIT, VEGETABLES, EGG, CHEESE, AND/OR POTATO BASED SNACK FOODS; SNACK FOODS MADE FROM VEGETABLES, MEAT, FISH, POULTY, CHEESE, AND/OR POTATO, NAMELY, TAQUITOS, SPRING ROLLS, QUESADILLA ROLLS, HASH BROWN STICKS, DUMPLINGS, SAMOSAS, BREADED AND/OR BATTERED ONION RINGS AND STRAWS, BREADED AND BATTERED VEGETABLES, BATTERED CHEESE, CHEESE STICKS, PATES AND SEAFOOD MOUSSES; FROZEN AND PREPARED NON-DAIRY DESSERTS, NAMELY, DESSERTS MADE OF FRUITS, FROZEN FRUITS, AND FRUIT SALAD; APPETIZERS, NAMELY, MEAT, FISH, POULTRY, MEAT EXTRACTS, FRUITS, VEGETABLES, EGG, CHEESE, AND/OR POTATO BASED APPETIZERS; APPETIZERS MADE FROM VEGETABLES, MEAT, FISH, POULTRY, CHEESE, AND/OR POTATO, NAMELY, TAQUITOS, SPRING ROLLS, QUESADILLA ROLLS, HASH BROWN STICKS, DUMPLINGS, SAMOSAS, BREADED AND/OR BATTERED ONION RINGS AND STRAWS, BREADED AND BATTERED VEGETABLES, BATTERED CHEESE, CHEESE STICKS, PATES AND SEAFOOD MOUSSES; DIPS, NAMELY, MEAT, SEAFOOD, AND/OR VEGETABLE BASED DIPS, DAIRY BASED DIPS, SAUCES USED AS DIPS, AND SNACK FOOD DIPS; FRUITS AND VEGETABLES, NAMELY, FROZEN, CHILLED, DEHYDRATED, BATTERED AND/OR PROCESSED FRUITS AND VEGETABLES; FROZEN PREPARED MEALS, NAMELY, FROZEN OR CHILLED PREPARED MEALS CONTAINING OR CONSISTING PRIMARILY OF VEGETABLES, MEAT, POULTRY, POTATOES, EGGS, CHEESE, FISH, AND/OR SEAFOOD; BREAKFAST FOODS, NAMELY, MEAT, FISH, SEAFOOD, POULTRY, MEAT EXTRACTS, FRUITS, VEGETABLES, EGGS, POTATO, AND/OR CHEESE BASED BREAKFAST FOODS; POTATO PANCAKES; HASH BROWNS; BREAKFAST PATTIES CONTAINING EGG, MEAT, VEGETABLES OR CHEESE, AND EGGS; PREPARED MEALS AND ENTREES, NAMELY, PREPARED MEALS AND ENTREES BASED OF MEAT, FISH, SEAFOOD, POULTRY, MEAT EXTRACTS, FRUITS, VEGETABLES, EGGS, POTATO, AND/OR CHEESE; AND SOUPS
Filing Basis: Section 1(b), Intent to Use: For a trademark or service mark application: As of the application filing date, the applicant had a bona fide intention, and was entitled, to use the mark in commerce on or in connection with the identified goods/services in the application. For a collective trademark, collective service mark, or collective membership mark application: As of the application filing date, the applicant had a bona fide intention, and was entitled, to exercise legitimate control over the use of the mark in commerce by members on or in connection with the identified goods/services/collective membership organization. For a certification mark application: As of the application filing date, the applicant had a bona fide intention, and was entitled, to exercise legitimate control over the use of the mark in commerce by authorized users in connection with the identified goods/services, and the applicant will not engage in the production or marketing of the goods/services to which the mark is applied, except to advertise or promote recognition of the certification program or of the goods/services that meet the certification standards of the applicant.

Applicant hereby submits one(or more) specimen(s) for Class 029 .

Filing Basis: Section 44(d), Priority based on foreign filing:For a trademark or service mark application: As of the application filing date, the applicant had a bona fide intention, and was entitled, to use the mark in commerce on or in connection with the identified goods/services, and asserts a claim of priority based upon a foreign application. For a collective trademark, collective service mark, or collective membership mark application: As of the application filing date, the applicant had a bona fide intention, and was entitled, to exercise legitimate control over the use of the mark in commerce by members on or in connection with the identified goods/services/collective membership organization, and asserts a claim of priority based upon a foreign application. For a certification membership mark application: As of the application filing date, the applicant had a bona fide intention, and was entitled, to exercise legitimate control over the use of the mark in commerce by authorized users in connection with the identified goods/services, the applicant will not engage in the production or marketing of the goods/services to which the mark is applied, except to advertise or promote recognition of the certification program or of the goods or services that meet the certification standards of the applicant, and the applicant asserts a claim of priority based upon a foreign application. Claim of priority is based on [ Canada application number 1,584,721 filed 07/04/2012]. 15 U.S.C.Section 1126(d), as amended.

Applicant proposes to amend the following class of goods/services in the application:
Current: Class 035 for food service services, namely, retailing of foods, and selling foods for use in food services channels of trade, vending machine food services, information and education, operation of a website and contest and coupon services
Original Filing Basis:
Filing Basis: Section 1(b), Intent to Use: For a trademark or service mark application: As of the application filing date, the applicant had a bona fide intention, and was entitled, to use the mark in commerce on or in connection with the identified goods/services in the application. For a collective trademark, collective service mark, or collective membership mark application: As of the application filing date, the applicant had a bona fide intention, and was entitled, to exercise legitimate control over the use of the mark in commerce by members on or in connection with the identified goods/services/collective membership organization. For a certification mark application: As of the application filing date, the applicant had a bona fide intention, and was entitled, to exercise legitimate control over the use of the mark in commerce by authorized users in connection with the identified goods/services, and the applicant will not engage in the production or marketing of the goods/services to which the mark is applied, except to advertise or promote recognition of the certification program or of the goods/services that meet the certification standards of the applicant.

Based on Foreign Application: Applicant has had a bona fide intention to use the mark in commerce on or in connection with the identified goods and/or services, and will submit a copy of a foreign registration, and translation thereof, if appropriate. 15 U. S.C. Section 1126(d), as amended.

Proposed:
Tracked Text Description: food service services, namely, retailing of foods, and selling foods for use in food services channels of trade, vending machine food services, information and education, operation of a website and contest and coupon services; FOOD SERVICE SERVICES, NAMELY, WHOLESALING OF FOODS FOR USE IN FOOD SERVICE CHANNELS OF TRADE, NAMELY, SERVICES PROVIDED TO RETAILERS AND WHOLESALERS IN PROVIDING FOODS FOR SUBSEQUENT RESALE; INFORMATIONAL SERVICES, NAMELY, PROVIDING INFORMATION IN THE FIELD OF FOOD, HEALTHY EATING AND NUTRITION THROUGH THE USE OF PRINTED MATERIAL, ELECTRONIC, ELECTRONIC MATERIALS OR THROUGH WEBSITES; INFORMATION SERVICES, NAMELY, PROVIDING A WEBSITE FEATURING INFORMATION IN THE FIELD OF FOOD, HEALTHY EATING AND NUTRITION; VENDING MACHINE SERVICES FEATURING FOOD; AND COUPON SERVICES AND CONTEST SERVICES FOR PROMOTING THE GOODS AND SERVICES OF OTHERSClass 035 for FOOD SERVICE SERVICES, NAMELY, WHOLESALING OF FOODS FOR USE IN FOOD SERVICE CHANNELS OF TRADE, NAMELY, SERVICES PROVIDED TO RETAILERS AND WHOLESALERS IN PROVIDING FOODS FOR SUBSEQUENT RESALE; INFORMATIONAL SERVICES, NAMELY, PROVIDING INFORMATION IN THE FIELD OF FOOD, HEALTHY EATING AND NUTRITION THROUGH THE USE OF PRINTED MATERIAL, ELECTRONIC, ELECTRONIC MATERIALS OR THROUGH WEBSITES; INFORMATION SERVICES, NAMELY, PROVIDING A WEBSITE FEATURING INFORMATION IN THE FIELD OF FOOD, HEALTHY EATING AND NUTRITION; VENDING MACHINE SERVICES FEATURING FOOD; AND COUPON SERVICES AND CONTEST SERVICES FOR PROMOTING THE GOODS AND SERVICES OF OTHERS
Filing Basis: Section 1(b), Intent to Use: For a trademark or service mark application: As of the application filing date, the applicant had a bona fide intention, and was entitled, to use the mark in commerce on or in connection with the identified goods/services in the application. For a collective trademark, collective service mark, or collective membership mark application: As of the application filing date, the applicant had a bona fide intention, and was entitled, to exercise legitimate control over the use of the mark in commerce by members on or in connection with the identified goods/services/collective membership organization. For a certification mark application: As of the application filing date, the applicant had a bona fide intention, and was entitled, to exercise legitimate control over the use of the mark in commerce by authorized users in connection with the identified goods/services, and the applicant will not engage in the production or marketing of the goods/services to which the mark is applied, except to advertise or promote recognition of the certification program or of the goods/services that meet the certification standards of the applicant.

Based on Foreign Application: Applicant has a bona fide intention to use the mark in commerce on or in connection with the identified goods and/or services, and will submit a copy of a foreign registration, and translation thereof, if appropriate. 15 U. S.C. Section 1126(d), as amended.

Applicant hereby adds the following class of goods/services to the application:
New: Class 030 for PIZZA; SNACK FOODS, NAMELY, CEREAL AND/OR RICE BASED SNACK FOODS, NAMELY, SNACK FOODS CONTAINING OR CONSISTING OF DOUGH, PASTA, PASTRY, PIZZA, GARLIC BREAD AND GARLIC FINGERS, AND DOUGH ENROBED SNACK FOODS CONSISTING OF A DOUGH-BASED WRAPPER WITH PIZZA FILLING; APPETIZERS, NAMELY, APPETIZERS HAVING A CEREAL AND/OR RICE BASE, NAMELY, APPETIZERS CONTAINING OR CONSISTING OF DOUGH, PASTA, PASTRY, PIZZA, GARLIC BREAD, AND GARLIC FINGERS, AND DOUGH ENROBED APPETIZERS CONSISTING OF A DOUGH-BASED WRAPPER WITH PIZZA FILLINGS; FROZEN AND PREPARED DESSERTS, NAMELY, BAKERY GOODS, BAKERY DESSERTS, PIES, CAKES, PASTRIES, FRENCH TOAST, WAFFLES, FRUIT AND ICE CREAM PIES, AND FROZEN CONFECTIONS; FROZEN AND PREPARED PASTRIES; ICE CREAM; FROZEN PREPARED MEALS, NAMELY, MEALS CONTAINING OR CONSISTING PRIMARILY OF PASTA, PIZZA AND/OR RICE; BREAKFAST FOODS, NAMELY, FRENCH TOAST, PANCAKES, WAFFLES, CEREALS, OATMEAL AND CREAMED WHEAT CEREALS; PREPARED SANDWICHES, NAMELY, FILLED WRAPS AND BREAD WITH FILLING; PREPARED MEALS AND ENTREES, NAMELY, CEREAL AND RICE BASED PREPARED MEALS AND ENTREES, NAMELY, ENTREES CONTAINING OR CONSISTING OF PASTA, PIZZA, RICE, SANDWICHES, AND DOUGH ENROBED ENTREES CONSISTING OF DOUGH-BASED WRAPPER WITH PIZZA FILLING; AND POWDERS AND MIXES USED IN PREPARATION OF NON-ALCOHOLIC BEVERAGES, SOFT DRINKS AND SMOOTHIES
Filing Basis: Section 1(b), Intent to Use: For a trademark or service mark application: As of the application filing date, the applicant had a bona fide intention, and was entitled, to use the mark in commerce on or in connection with the identified goods/services in the application. For a collective trademark, collective service mark, or collective membership mark application: As of the application filing date, the applicant had a bona fide intention, and was entitled, to exercise legitimate control over the use of the mark in commerce by members on or in connection with the identified goods/services/collective membership organization. For a certification mark application: As of the application filing date, the applicant had a bona fide intention, and was entitled, to exercise legitimate control over the use of the mark in commerce by authorized users in connection with the identified goods/services, and the applicant will not engage in the production or marketing of the goods/services to which the mark is applied, except to advertise or promote recognition of the certification program or of the goods/services that meet the certification standards of the applicant.

Filing Basis: Section 44(d), Priority based on foreign filing:For a trademark or service mark application: As of the application filing date, the applicant had a bona fide intention, and was entitled, to use the mark in commerce on or in connection with the identified goods/services, and asserts a claim of priority based upon a foreign application. For a collective trademark, collective service mark, or collective membership mark application: As of the application filing date, the applicant had a bona fide intention, and was entitled, to exercise legitimate control over the use of the mark in commerce by members on or in connection with the identified goods/services/collective membership organization, and asserts a claim of priority based upon a foreign application. For a certification membership mark application: As of the application filing date, the applicant had a bona fide intention, and was entitled, to exercise legitimate control over the use of the mark in commerce by authorized users in connection with the identified goods/services, the applicant will not engage in the production or marketing of the goods/services to which the mark is applied, except to advertise or promote recognition of the certification program or of the goods or services that meet the certification standards of the applicant, and the applicant asserts a claim of priority based upon a foreign application. Claim of priority is based on [ Canada application number 1584719 filed 07/04/2012]. 15 U.S.C.Section 1126(d), as amended.
INTENT TO PERFECT 44(d) : At this time, the applicant intends to rely on Section 44(e) as a basis for registration. If ultimately the applicant does not rely on Section 44(e) as a basis for registration, a valid claim of priority may be retained.

ADDITIONAL STATEMENTS
Claim of Active Prior Registration(s)
The applicant claims ownership of U.S. Registration Number(s) 1103535, 1409644, and 1763089.


Miscellaneous Statement
APPLICANT IS THE OWNER OF U.S. REGISTRATION NOS. 1103535, 1409644, 1763089, 1796018, 1820077, 1834807, AND 3158142


FEE(S)
Fee(s) in the amount of $325 is being submitted.

SIGNATURE(S)
Declaration Signature
If the applicant is seeking registration under Section 1(b) and/or Section 44 of the Trademark Act, the applicant has had a bona fide intention to use or use through the applicant's related company or licensee the mark in commerce on or in connection with the identified goods and/or services as of the filing date of the application. 37 C.F.R. Secs. 2.34(a)(2)(i); 2.34 (a)(3)(i); and 2.34(a)(4)(ii); and/or the applicant has had a bona fide intention to exercise legitimate control over the use of the mark in commerce by its members. 37 C.F. R. Sec. 2.44. If the applicant is seeking registration under Section 1(a) of the Trademark Act, the mark was in use in commerce on or in connection with the goods and/or services listed in the application as of the application filing date or as of the date of any submitted allegation of use. 37 C.F.R. Secs. 2.34(a)(1)(i); and/or the applicant has exercised legitimate control over the use of the mark in commerce by its members. 37 C.F.R. Sec. 2.44. The undersigned, being hereby warned that willful false statements and the like so made are punishable by fine or imprisonment, or both, under 18 U.S.C. Section 1001, and that such willful false statements may jeopardize the validity of the application or any resulting registration, declares that he/she is properly authorized to execute this application on behalf of the applicant; he/she believes the applicant to be the owner of the trademark/service mark sought to be registered, or, if the application is being filed under 15 U.S.C. Section 1051(b), he/she believes applicant to be entitled to use such mark in commerce; to the best of his/her knowledge and belief no other person, firm, corporation, or association has the right to use the mark in commerce, either in the identical form thereof or in such near resemblance thereto as to be likely, when used on or in connection with the goods/services of such other person, to cause confusion, or to cause mistake, or to deceive; that if the original application was submitted unsigned, that all statements in the original application and this submission made of the declaration signer's knowledge are true; and all statements in the original application and this submission made on information and belief are believed to be true.

Signature: /PAUL H. KOCHANSKI/      Date: 10/24/2013
Signatory's Name: PAUL H. KOCHANSKI
Signatory's Position: ATTORNEY OF RECORD, NJ BAR MEMBER
Signatory's Phone Number: 908-654-5000


Response Signature
Signature: /PAUL H. KOCHANSKI/     Date: 10/24/2013
Signatory's Name: PAUL H. KOCHANSKI
Signatory's Position: ATTORNEY OF RECORD, NJ BAR MEMBER

Signatory's Phone Number: 908-654-5000

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.

        
RAM Sale Number: 85814042
RAM Accounting Date: 10/25/2013
        
Serial Number: 85814042
Internet Transmission Date: Thu Oct 24 14:12:53 EDT 2013
TEAS Stamp: USPTO/ROA-XXX.XX.X.X-2013102414125344415
8-85814042-500fb1c31f258b98147dbdb1ce97f
8810ae3217f53c5baafcaa4e323fbeed5e8ba8-D
A-441-20131024141130927102