Reconsideration Letter

UNITED STATES PATENT AND TRADEMARK OFFICE (USPTO)

OFFICE ACTION (OFFICIAL LETTER) ABOUT APPLICANT’S TRADEMARK APPLICATION

 

 

 

REQUEST FOR RECONSIDERATION DENIED

 

ISSUE/MAILING DATE: 4/6/2018

 

The trademark examining attorney has carefully reviewed applicant’s request for reconsideration and is denying the request for the reasons stated below.  See 37 C.F.R. §2.63(b)(3); TMEP §§715.03(a)(ii)(B), 715.04(a).  The following requirement(s) and/or refusal(s) made final in the Office action dated 9/21/17 are maintained and continue to be final:  refusal pursuant to Section 2(d) of the Trademark Act.  See TMEP §§715.03(a)(ii)(B), 715.04(a). 

 

In the present case, applicant’s request has not resolved all the outstanding issue(s), nor does it raise a new issue or provide any new or compelling evidence with regard to the outstanding issue(s) in the final Office action.  In addition, applicant’s analysis and arguments are not persuasive nor do they shed new light on the issues.  Accordingly, the request is denied.

 

In the Request for Reconsideration, the applicant amended the identification of goods to read:

 

“Animal feeds, namely, poultry feeds, excluding dietetic food and substances adapted for medical or veterinary use.” 

 

The applicant contends that “its goods, as amended, are sufficiently unrelated to those in the cited registrations to avoid a likelihood of confusion. The parties' goods, as amended, are not of a type that consumers reasonably may expect to emanate from a single source under the same mark. The parties' goods will travel through different channels of trade and their marks will not be encountered by consumers at the same time under circumstances where confusion reasonably may occur, thus the goods, as amended, are unrelated and there is no likelihood of confusion.”

 

The examining attorney must respectfully disagree with the applicant’s conclusions.  When analyzing the respective goods, the applicant only listed the registrant’s int. class 5 identification of goods.  However in addition to the class 5 listing, both cited registrations also include goods in int. class 31:

 

• Registration No. 4698428 includes Int. class 31; “Foodstuffs for animals; dog food; cat food; pet food”;

 

• Registration No. 4719088 includes int. class 31; “Foodstuffs for animals; Dog biscuits; Beverages for pets; Animal litter.”

 

 

As seen from the attached dictionary definitions:

 

 http://www.merriam-webster.com/dictionary/foodstuff

 

http://www.merriam-webster.com/dictionary/feed

 

Foodstuff is defined as “a substance with food value” and Feed is “food for livestock”.  Poultry feed is a substance with food value given to poultry.  Poultry feed is a type of foodstuff.  The registrant’s foodstuff for animals is an unrestricted and broad identification which is presumed to encompass all goods of the type described, including applicant’s more narrowly defined poultry feed.  See, e.g., Sw. Mgmt., Inc. v. Ocinomled, Ltd., 115 USPQ2d 1007, 1025 (TTAB 2015); In re N.A.D., Inc., 57 USPQ2d 1872, 1874 (TTAB 2000). 

 

Also the registrant’s identification “foodstuffs for animals” has no restrictions as to nature, type, channels of trade, or classes of purchasers.  Therefore, it is presumed that these goods travel in all normal channels of trade, and are available to the same class of purchasers.  See Midwestern Pet Foods, Inc. v. Societe des Produits Nestle S.A., 685 F.3d 1046, 1053, 103 USPQ2d 1435, 1440 (Fed. Cir. 2012).  Furthermore as seen from the previously attached as well as presently attached sampling of third-party websites:

 

http://www.tractorsupply.com/

 

http://www.tractorsupply.com/tsc/search/animal%20food

 

http://www.petco.com/shop/en/petcostore/category/bird/chicken-food-and-treats

 

http://www.petco.com/shop/en/petcostore/category/dog

 

http://www.chewy.com/b/chicken-951

 

http://www.chewy.com/b/dog-288

 

http://www.chewy.com/s?rh=c%3A1663%2Cc%3A1664

 

http://www.tobinsfeedandseed.com/dog-food#Pets

 

http://www.tobinsfeedandseed.com/goat-sheep-deer-feed

 

http://www.tobinsfeedandseed.com/game-bird-feed

 

http://championfeedandpet.com/

 

http://championfeedandpet.com/catalog

 

evidences the relevant goods [poultry feed and foodstuffs for animals as well as food for other animals such as dog food and cat food] are sold or provided through the same trade channels and used by the same classes of consumers in the same fields of use.

 

Furthermore the attached sampling of third-party websites:

 

http://www.nutrenaworld.com/dealer-locator

 

http://www.tractorsupply.com/tsc/catalog/chicken-feed#facet:30744573456166767008011711410511097&facetLimit:&productBeginIndex:0&orderBy:&pageView:&minPrice:&maxPrice:&pageSize:&

 

http://www.tractorsupply.com/tsc/catalog/chicken-feed#facet:30744573456166767008011711410511097&facetLimit:&productBeginIndex:0&orderBy:&pageView:&minPrice:&maxPrice:&pageSize:&

 

demonstrates the same entity commonly manufactures/produces/provides the relevant goods [poultry feed and other animal food such as dog food and cat food] and markets the goods under the same mark.  Thus, applicant’s and registrant’s goods are considered related for likelihood of confusion purposes.  See, e.g., In re Davey Prods. Pty Ltd., 92 USPQ2d 1198, 1202-04 (TTAB 2009); In re Toshiba Med. Sys. Corp., 91 USPQ2d 1266, 1268-69, 1271-72 (TTAB 2009).

 

Applicant also contends the respective marks are dissimilar because of the different first word in the marks.  The examining attorney must again respectfully disagree.  In Registration No. 4698428, the term INTEGRA is in the largest font and would be the dominant term impressed on purchasers’ minds; and in Registration No. 4719088, the term INTEGRA is the first term and would be considered the dominant term in that mark.  As to the applied-for mark, the term INTEGRA appears in the larger font and is the dominant term rather than the house mark B-MEG.  The addition of a house mark to an otherwise confusingly similar mark will not obviate a likelihood of confusion under Section 2(d).  See In re Fiesta Palms LLC, 85 USPQ2d 1360, 1366-67 (TTAB 2007) (finding CLUB PALMS MVP and MVP confusingly similar); In re Christian Dior, S.A., 225 USPQ 533, 534 (TTAB 1985) (finding LE CACHET DE DIOR and CACHET confusingly similar); TMEP §1207.01(b)(iii).  It is likely that goods sold under these marks would be attributed to the same source.  See In re Chica, Inc., 84 USPQ2d 1845, 1848-49 (TTAB 2007). 

 

Marks may be confusingly similar in appearance where similar terms or phrases or similar parts of terms or phrases appear in the compared marks and create a similar overall commercial impression.  See Crocker Nat’l Bank v. Canadian Imperial Bank of Commerce, 228 USPQ 689, 690-91 (TTAB 1986), aff’d sub nom. Canadian Imperial Bank of Commerce v. Wells Fargo Bank, Nat’l Ass’n, 811 F.2d 1490, 1495, 1 USPQ2d 1813, 1817 (Fed. Cir. 1987) (finding COMMCASH and COMMUNICASH confusingly similar); In re Corning Glass Works, 229 USPQ 65, 66 (TTAB 1985) (finding CONFIRM and CONFIRMCELLS confusingly similar); In re Pellerin Milnor Corp., 221 USPQ 558, 560 (TTAB 1983) (finding MILTRON and MILLTRONICS confusingly similar); TMEP §1207.01(b)(ii)-(iii).  In the present case the respective marks share the identical term INTEGRA.  Therefore the marks are identical in part.  Accordingly, in the present case, the marks are confusingly similar.

 

As indicated above, applicant’s analysis and arguments are not persuasive nor do they shed new light on the issues.  Accordingly, the request is denied. 

 

The applicant has already filed a timely notice of appeal with the Trademark Trial and Appeal Board, therefore the Board will be notified to resume the appeal.  See TMEP §715.04(a).

 

 

 

 

/Karen K. Bush/

Trademark Examining Attorney

Law Office 108

571-272-9136

Karen.Bush@uspto.gov

 

 

 

UNITED STATES PATENT AND TRADEMARK OFFICE (USPTO)

 

 

IMPORTANT NOTICE REGARDING YOUR

U.S. TRADEMARK APPLICATION

 

USPTO OFFICE ACTION (OFFICIAL LETTER) HAS ISSUED

ON 4/6/2018 FOR U.S. APPLICATION SERIAL NO. 87211884

 

Please follow the instructions below:

 

(1)  TO READ THE LETTER:  Click on this link or go to http://tsdr.uspto.gov,enter the U.S. application serial number, and click on “Documents.”

 

The Office action may not be immediately viewable, to allow for necessary system updates of the application, but will be available within 24 hours of this e-mail notification.

 

(2)  TIMELY RESPONSE IS REQUIRED:  Please carefully review the Office action to determine (1) how to respond, and (2) the applicable response time period.  Your response deadline will be calculated from 4/6/2018 (or sooner if specified in the Office action).  A response transmitted through the Trademark Electronic Application System (TEAS) must be received before midnight Eastern Time of the last day of the response period.  For information regarding response time periods, see http://www.gov.uspto.report/trademarks/process/status/responsetime.jsp.

 

Do NOT hit “Reply” to this e-mail notification, or otherwise e-mail your response because the USPTO does NOT accept e-mails as responses to Office actions.  Instead, the USPTO recommends that you respond online using the TEAS response form located at http://www.gov.uspto.report/trademarks/teas/response_forms.jsp.

 

(3)  QUESTIONS:  For questions about the contents of the Office action itself, please contact the assigned trademark examining attorney.  For technical assistance in accessing or viewing the Office action in the Trademark Status and Document Retrieval (TSDR) system, please e-mail TSDR@uspto.gov.

 

WARNING

 

Failure to file the required response by the applicable response deadline will result in the ABANDONMENT of your application.  For more information regarding abandonment, see http://www.gov.uspto.report/trademarks/basics/abandon.jsp.

 

PRIVATE COMPANY SOLICITATIONS REGARDING YOUR APPLICATION:  Private companies not associated with the USPTO are using information provided in trademark applications to mail or e-mail trademark-related solicitations.  These companies often use names that closely resemble the USPTO and their solicitations may look like an official government document.  Many solicitations require that you pay “fees.” 

 

Please carefully review all correspondence you receive regarding this application to make sure that you are responding to an official document from the USPTO rather than a private company solicitation.  All official USPTO correspondence will be mailed only from the “United States Patent and Trademark Office” in Alexandria, VA; or sent by e-mail from the domain “@uspto.gov.”  For more information on how to handle private company solicitations, see http://www.gov.uspto.report/trademarks/solicitation_warnings.jsp.