Response to Office Action

Under the Paperwork Reduction Act of 1995 no persons are required to respond to a collection of information unless it displays a valid OMB control number. PTO Form 1957 (Rev 10/2011)

OMB No. 0651-0050 (Exp 09/20/2020)

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Under the Paperwork Reduction Act of 1995 no persons are required to respond to a collection of information unless it displays a valid OMB control number. PTO Form 1957 (Rev 10/2011)

OMB No. 0651-0050 (Exp 09/20/2020)

Response to Office Action

To the Commissioner for Trademarks:

Application serial no. 87979264 MOXE (Stylized and/or with Design, see http://uspto.report/TM/87979264/mark.png) has been amended as follows:

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

The Examining Attorney refused Applicant’s specimen for International Class 11 claiming that the diffusers do not appear to be battery powered, and do not appear to emit vaporizing units that emit vapor into the air.  The Examining Attorney is incorrect.   

First the product is battery powered, because the battery is necessary to engage the atomizer which superheats the essential oil that causes the oil to transform into a vapor.  Second, the product must vaporize the products into the air, otherwise vapor would not be emitted from the product.  Such emissions could include the vapor that one receives when putting her lips to the product and breathing in.  Such use would naturally emit vapor into the air.  See Additional description of Applicant’s Product at Exhibit “1.” 

Second, Applicant’s product is similar to the MONQ®, Reg. 5057546, product in that each of the products consist of portable battery-powered aromatherapy units for vaporizing essential oils for personal inhalation.  See MONQ® Registration, Specimen, and Amazon Printout at Exhibit “2.” 

Applicant’s specimen falls squarely within International Class 11 in the same manner as the MONQ® product[1], and meets each of the requirements under the TMEP.  As a result, Applicant requests that the Examining Attorney withdraw the refusal, accept the specimen, and allow the mark to register. 

EVIDENCE
Evidence in the nature of Print-out of Applicant's product on Amazon and Non-party Registered Mark with specimen and evidence of use. has been attached.
Original PDF file:
evi_9776215210-20181220172407572339_._2-_Amazon.com___MOX__Peace_-_Portable_Essential_Oil_Diffuser.pdf
Converted PDF file(s) ( 7 pages)
Evidence-1
Evidence-2
Evidence-3
Evidence-4
Evidence-5
Evidence-6
Evidence-7
Original PDF file:
evi_9776215210-20181220172407572339_._MOXE_EVIDENCE-Amazon.com__MONQ.pdf
Converted PDF file(s) ( 9 pages)
Evidence-1
Evidence-2
Evidence-3
Evidence-4
Evidence-5
Evidence-6
Evidence-7
Evidence-8
Evidence-9

SIGNATURE(S)
Response Signature
Signature: /Zachary D. Messa/     Date: 12/20/2018
Signatory's Name: Zachary D. Messa
Signatory's Position: Attorney of Record-FL Bar Member

Signatory's Phone Number: 7274611818

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 owner's/holder'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 owner/holder in this matter: (1) the owner/holder 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 owner/holder has filed a power of attorney appointing him/her in this matter; or (4) the owner's/holder'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.

        
Serial Number: 87979264
Internet Transmission Date: Thu Dec 20 17:30:08 EST 2018
TEAS Stamp: USPTO/ROA-XX.XX.XXX.XXX-2018122017300842
8772-87979264-620974eb2b841b8af6b719c906
38589b9f9312690a2ba27bf543e08ba66bd3892-
N/A-N/A-20181220172407572339