To: | Xplore Space, Inc. (trademarks@nge.com) |
Subject: | U.S. TRADEMARK APPLICATION NO. 87562666 - XPLORE - 26399- - Request for Reconsideration Denied - Return to TTAB |
Sent: | 1/18/2019 2:00:18 PM |
Sent As: | ECOM105@USPTO.GOV |
Attachments: |
UNITED STATES PATENT AND TRADEMARK OFFICE (USPTO)
OFFICE ACTION (OFFICIAL LETTER) ABOUT APPLICANT’S TRADEMARK APPLICATION
U.S. APPLICATION SERIAL NO. 87562666
MARK: XPLORE
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CORRESPONDENT ADDRESS: |
GENERAL TRADEMARK INFORMATION: http://www.gov.uspto.report/trademarks/index.jsp
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APPLICANT: Xplore Space, Inc.
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CORRESPONDENT’S REFERENCE/DOCKET NO: CORRESPONDENT E-MAIL ADDRESS: |
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REQUEST FOR RECONSIDERATION DENIED
ISSUE/MAILING DATE: 1/18/2019
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 June 13, 2018 are maintained and continue to be final: Section 2(e)(1) Descriptive Refusal. See TMEP §§715.03(a)(ii)(B), 715.04(a). The following requirement(s) and/or refusal(s) made final in the Office action are satisfied: identification of services in Class 038. 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.
As stated in the previous office actions, the applicant is applying to register the mark XPLORE for use with services relating to and for use in space exploration. As the previously attached evidence reflects, the word “explore” is defined as: “Travel in or through (an unfamiliar country or area) in order to learn about or familiarize oneself with it.” The applicant argues that the mark is arbitrary or suggestive and not descriptive because in the minds of the consumer, business and financial services are not related to space exploration. The examining attorney respectfully disagrees with this argument. The determination of whether a mark is merely descriptive is made in relation to an applicant’s services, not in the abstract. DuoProSS Meditech Corp. v. Inviro Med. Devices, Ltd., 695 F.3d 1247, 1254, 103 USPQ2d 1753, 1757 (Fed. Cir. 2012); In re The Chamber of Commerce of the U.S., 675 F.3d 1297, 1300, 102 USPQ2d 1217, 1219 (Fed. Cir. 2012); TMEP §1209.01(b); see, e.g., In re Polo Int’l Inc., 51 USPQ2d 1061, 1062-63 (TTAB 1999) (finding DOC in DOC-CONTROL would refer to the “documents” managed by applicant’s software rather than the term “doctor” shown in a dictionary definition); In re Digital Research Inc., 4 USPQ2d 1242, 1243-44 (TTAB 1987) (finding CONCURRENT PC-DOS and CONCURRENT DOS merely descriptive of “computer programs recorded on disk” where the relevant trade used the denomination “concurrent” as a descriptor of a particular type of operating system).
The applicant’s identification of services states that the services are for space exploration – “consulting and financial services relating to space exploration and launching, and collection and transmission of data and digital images. In this case, the transmission of data and digital images are presumably to aid in exploration of space – an unfamiliar territory (see definition of “explore” - in order to learn about or familiarize oneself with an unfamiliar territory); therefore, such wording is descriptive in the context of the services. A novel spelling or an intentional misspelling that is the phonetic equivalent of a merely descriptive word or term is also merely descriptive if purchasers would perceive the different spelling as the equivalent of the descriptive word or term. See In re Quik-Print Copy Shop, Inc., 616 F.2d 523, 526 & n.9, 205 USPQ 505, 507 & n.9 (C.C.P.A. 1980) (holding “QUIK-PRINT,” phonetic spelling of “quick-print,” merely descriptive of printing and photocopying services). Here, deleting the E” from the word “explore” does not change either the pronunciation of perception of the word as the “E” in explore is silent with the first letter pronounced being “X.” Thus, the spelling XPLORE does not obviate the descriptiveness of the word.
Accordingly, the request for reconsideration is denied with respect to the Section 2(e)(1) descriptive refusal.
If applicant has already filed a timely notice of appeal with the Trademark Trial and Appeal Board, the Board will be notified to resume the appeal. See TMEP §715.04(a).
If no appeal has been filed and time remains in the six-month response period to the final Office action, applicant has the remainder of the response period to (1) comply with and/or overcome any outstanding final requirement(s) and/or refusal(s), and/or (2) file a notice of appeal to the Board. TMEP §715.03(a)(ii)(B); see 37 C.F.R. §2.63(b)(1)-(3). The filing of a request for reconsideration does not stay or extend the time for filing an appeal. 37 C.F.R. §2.63(b)(3); see TMEP §§715.03, 715.03(a)(ii)(B), (c).
/CarynGlasser/
Trademark Examining Attorney
Law Office 105
Phone: (571) 270-1517
Fax: (571) 270-2517
caryn.glasser@uspto.gov