To: | APOTHECARY PRODUCTS, LLC (dockmpls@merchantgould.com) |
Subject: | U.S. TRADEMARK APPLICATION NO. 86136053 - EZY DOSE - 1993.1US01 |
Sent: | 3/18/2014 1:47:09 PM |
Sent As: | ECOM115@USPTO.GOV |
Attachments: | Attachment - 1 Attachment - 2 Attachment - 3 Attachment - 4 |
UNITED STATES PATENT AND TRADEMARK OFFICE (USPTO)
OFFICE ACTION (OFFICIAL LETTER) ABOUT APPLICANT’S TRADEMARK APPLICATION
U.S. APPLICATION SERIAL NO. 86136053
MARK: EZY DOSE
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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: APOTHECARY PRODUCTS, LLC
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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: 3/18/2014
The referenced application has been reviewed by the assigned trademark examining attorney. Applicant must respond timely and completely to the issue(s) below. 15 U.S.C. §1062(b); 37 C.F.R. §§2.62(a), 2.65(a); TMEP §§711, 718.03.
NO CONFLICTING MARKS FOUND
The trademark examining attorney has searched the Office’s database of registered and pending marks and has found no conflicting marks that would bar registration under Trademark Act Section 2(d). TMEP §704.02; see 15 U.S.C. §1052(d).
DISCLAIMER
Applicant must disclaim the descriptive wording “DOSE” apart from the mark as shown because it merely describes an ingredient, quality, characteristic, function, feature, purpose, or use of applicant’s goods and/or services. See 15 U.S.C. §§1052(e)(1), 1056(a); DuoProSS Meditech Corp. v. Inviro Med. Devices, Ltd., 695 F.3d 1247, 1251, 103 USPQ2d 1753, 1755 (Fed. Cir. 2012) (quoting In re Oppedahl & Larson LLP, 373 F.3d 1171, 1173, 71 USPQ2d 1370, 1371 (Fed. Cir. 2004)); In re Steelbuilding.com, 415 F.3d 1293, 1297, 75 USPQ2d 1420, 1421 (Fed. Cir. 2005).
Specifically, the attached evidence from Merriam-Webster's Online Dictionary, 11th Edition shows this wording means “the amount of a medicine, drug, or vitamin that is taken at one time”. Therefore, the wording merely describes the purpose, function and exact nature of the goods, namely, medicine dosage spoons, droppers and syringes and dispensers, nursers and the like for accurate medicine doses. Please note that Prior Registration No. 3023595 has also disclaimed “dose.”
An applicant may not claim exclusive rights to terms or designs that others may need to use to describe or show their goods or services in the marketplace. See Dena Corp. v. Belvedere Int’l, Inc., 950 F.2d 1555, 1560, 21 USPQ2d 1047, 1051 (Fed. Cir. 1991); In re Aug. Storck KG, 218 USPQ 823, 825 (TTAB 1983). A disclaimer of unregistrable matter does not affect the appearance of the mark; that is, a disclaimer does not physically remove the disclaimed matter from the mark. See Schwarzkopf v. John H. Breck, Inc., 340 F.2d 978, 978, 144 USPQ 433, 433 (C.C.P.A. 1965); TMEP §1213.
If applicant does not provide the required disclaimer, the USPTO may refuse to register the entire mark. See In re Stereotaxis Inc., 429 F.3d 1039, 1040-41, 77 USPQ2d 1087, 1088-89 (Fed. Cir. 2005); TMEP §1213.01(b).
Applicant should submit a disclaimer in the following standardized format:
No claim is made to the exclusive right to use “DOSE” apart from the mark as shown.
For an overview of disclaimers and instructions on how to satisfy this disclaimer requirement online using the Trademark Electronic Application System (TEAS) form, please go to http://www.gov.uspto.report/trademarks/law/disclaimer.jsp.
IDENTIFICATION AND CLASSIFICATION
THIS PARTIAL REQUIREMENT APPLIES TO CLASS(ES) 10 AND 20 ONLY
The wording in the identification of goods as shown in bold below must be clarified because it is too broad and could include goods in other international classes. See TMEP §§1402.01, 1402.03. In particular, applicant must clarify that the droppers are sold empty, indicate that the applicator bottle is for medical use, specify whether the dispensers, containers, cases, and boxes are for commercial, personal, household or domestic use, and clarify the nature of its test strips which appears to be properly classified in Class 5. Applicant must amend the identification to specify the common commercial name of the goods. If there is no common commercial name, applicant must describe the product and its intended uses. See id.
Applicant may adopt the following identification(s) and classification, if accurate:
Class 5
Medical diagnostic test strips, namely, pH test paper strips for use in measuring blood glucose level;
Class 10
Medicine dosage spoons, droppers and oral syringes, sold empty, infant medicine nursers, drinking cups for dispensing medications, and pill and tablet crushers and cutters; specimen cups for medical use; syringes for medical use; medical apparatus, namely, applicator bottle used to dispense alcohol to the skin; medical ear syringes; medical apparatus in the nature of syringe magnifiers to be used with medical syringes; lancets; nasal aspirators
Class 20
Commercial dispensers for pills or capsules, sold empty; plastic containers for storing and organizing medications and vitamins for commercial use, sold empty; non-metal pill fob key chains; medical storage apparatus, namely, plastic pill dispensers, plastic pill containers, plastic pill medication cases, and non-metal plastic boxes for storing pills, each sold empty for commercial use
Class 21
Personal dispensers for pills or capsules for domestic use, sold empty; plastic containers for storing and organizing medications and vitamins for household use, sold empty; personal medical storage apparatus, namely, plastic pill dispensers, plastic containers for storing and organizing medications and vitamins, and non-metal boxes for storing pills, each sold empty for domestic and household use
For assistance with identifying and classifying goods and/or services in trademark applications, please see the online searchable Manual of Acceptable Identifications of Goods and Services at http://tess2.gov.uspto.report/netahtml/tidm.html. See TMEP §1402.04.
COMBINED OR MULTIPLE CLASS APPLICATION
(1) LIST GOODS AND/OR SERVICES BY INTERNATIONAL CLASS: Applicant must list the goods and/or services by international class.
(2) PROVIDE FEES FOR ALL INTERNATIONAL CLASSES: Applicant must submit an application filing fee for each international class of goods and/or services not covered by the fee(s) already paid (confirm current fee information at http://www.gov.uspto.report/trademarks/tm_fee_info.jsp).
See 15 U.S.C. §§1051(b), 1112, 1126(e); 37 C.F.R. §§2.34(a)(2)-(3), 2.86(a); TMEP §§1403.01, 1403.02(c).
Please note that applicant has paid for 3 class(es) only.
If the applicant has any questions regarding this Office Action, please telephone the assigned Examining Attorney.
Lana H. Pham /lhp/
Trademark Attorney-Advisor
Law Office 115
571-272-9478
Lana.Pham@uspto.gov (informal queries only)
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.