To: | Espro, Inc. (trademark@winthrop.com) |
Subject: | U.S. Trademark Application Serial No. 87931645 - BERRY - N/A |
Sent: | December 28, 2020 05:04:35 PM |
Sent As: | ecom116@uspto.gov |
Attachments: | Attachment - 1 Attachment - 2 Attachment - 3 |
United States Patent and Trademark Office (USPTO)
Office Action (Official Letter) About Applicant’s Trademark Application
U.S. Application Serial No. 87931645
Mark: BERRY
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Correspondence Address: |
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Applicant: Espro, Inc.
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Reference/Docket No. N/A
Correspondence Email Address: |
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NONFINAL OFFICE ACTION
The USPTO must receive applicant’s response to this letter within six months of the issue date below or the application will be abandoned. Respond using the Trademark Electronic Application System (TEAS). A link to the appropriate TEAS response form appears at the end of this Office action.
Issue date: December 28, 2020
On April 9, 2019, action on this application was suspended pending the disposition of U.S. Application Serial No. 87399443. The referenced prior-pending application has since registered. Therefore, registration is refused as follows.
LIKELIHOOD OF CONFUSION REFUSAL
Registration of the applied-for mark is refused because of a likelihood of confusion with the mark in U.S. Registration No. 6069762. Trademark Act Section 2(d), 15 U.S.C. §1052(d); see TMEP §§1207.01 et seq. See the attached registration.
Although not all du Pont factors may be relevant, there are generally two key considerations in any likelihood of confusion analysis: (1) the similarities between the compared marks and (2) the relatedness of the compared goods and/or services. See In re i.am.symbolic, llc, 866 F.3d at 1322, 123 USPQ2d at 1747 (quoting Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d 1156, 1164-65, 64 USPQ2d 1375, 1380 (Fed. Cir. 2002)); Federated Foods, Inc. v. Fort Howard Paper Co.,544 F.2d 1098, 1103, 192 USPQ 24, 29 (C.C.P.A. 1976) (“The fundamental inquiry mandated by [Section] 2(d) goes to the cumulative effect of differences in the essential characteristics of the goods [or services] and differences in the marks.”); TMEP §1207.01.
Similarity of Marks
The applicant has applied for the mark BERRY. The registrant’s mark is BERRY. The marks are identical in sound, appearance, meaning and commercial impression.
Relatedness of Goods
The applicant’s goods are “Coffee mugs; coffee cups.” The goods listed in the registration include “plastic cups for use solely to consume beverages and not for use with floral and fruit-based arrangements” in relevant part.
Where the goods in the application at issue or in the cited registration are broadly identified as to their nature and type, without restrictions as to the channels of trade and limitations as to the classes of purchasers, it is presumed that the scope the of the goods encompasses all goods of the nature and type described, and that the identified goods are offered in all normal channels of trade, and to all potential purchasers. In re Elbaum, 211 U.S.P.Q. 639, 640 (TTAB 1981); see TMEP § 1207.01(a)(iii). In the present case, the identification in the application includes broad language that is presumed to encompass all goods of the type described, including the narrower goods listed in the registration.
Because the marks are highly similar and the goods are closely related, confusion is likely in accordance with Section 2(d) of the Act. Although applicant’s mark has been refused registration, applicant may respond to the refusal by submitting evidence and arguments in support of registration.
How to respond. Click to file a response to this nonfinal Office action.
/Khanh M. Le/
Trademark Examining Attorney
Law Office 116
U.S. Patent & Trademark Office
Khanh.Le@USPTO.gov
(571) 272-9435
RESPONSE GUIDANCE