To: | Max Mobility, LLC (rdicerbo@mcandrews-ip.com) |
Subject: | U.S. Trademark Application Serial No. 88030923 - 90460US01 |
Sent: | July 03, 2019 04:07:50 PM |
Sent As: | ecom126@uspto.gov |
Attachments: |
United States Patent and Trademark Office (USPTO)
Office Action (Official Letter) About Applicant’s Trademark Application
U.S. Application Serial No. 88030923
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Correspondence Address: |
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Applicant: Max Mobility, LLC
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Reference/Docket No. 90460US01
Correspondence Email Address: |
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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: July 03, 2019
This Office action is supplemental to and supersedes the previous Office action issued on November 14, 2018 in connection with this application. Based on information and/or documentation in applicant’s response, the trademark examining attorney now issues the following new refusal: Claim of Acquired Distinctiveness – Five Years’ Use Not Accepted. See TMEP §§706, 711.02.
In a previous Office action(s) dated November 14, 2018, the trademark examining attorney refused registration of the applied-for mark based on the following: Trademark Act Sections 1, 2, and 45 for nondistinctive product design. In addition, applicant was required to satisfy the following requirement(s): Request for Information and Amended Mark Description and Drawing.
Based on applicant’s response, the trademark examining attorney notes that the following requirement(s) have been satisfied: Request for Information and Amended Mark Description and Drawing. See TMEP §713.02.
The following is a SUMMARY OF ISSUES that applicant must address:
• NEW ISSUE: Claim of Acquired Distinctiveness – Five Years’ Use Not Accepted
Applicant must respond to all issues raised in this Office action and the previous November 14, 2018 Office action, within six (6) months of the date of issuance of this Office action. 37 C.F.R. §2.62(a); see TMEP §711.02. If applicant does not respond within this time limit, the application will be abandoned. 37 C.F.R. §2.65(a).
CLAIM OF ACQUIRED DISTINCTIVENESS – FIVE YEARS’ USE NOT ACCEPTED
The applicant’s claim of acquired distinctiveness through five years’ continuous and substantially exclusive use in commerce is not accepted.
Evidence of five years’ use considered alone is generally not sufficient to show acquired distinctiveness for nondistinctive product design marks. E.g., In re R.M. Smith, Inc., 734 F.2d 1482, 1485, 222 USPQ 1, 3 (Fed. Cir. 1984); In re Change Wind Corp., 123 USPQ2d 1453, 1467 (TTAB 2017).
RESPONSE GUIDELINES
TEAS PLUS OR TEAS REDUCED FEE (TEAS RF) APPLICANTS – TO MAINTAIN LOWER FEE, ADDITIONAL REQUIREMENTS MUST BE MET, INCLUDING SUBMITTING DOCUMENTS ONLINE: Applicants who filed their application online using the lower-fee TEAS Plus or TEAS RF application form must (1) file certain documents online using TEAS, including responses to Office actions (see TMEP §§819.02(b), 820.02(b) for a complete list of these documents); (2) maintain a valid e-mail correspondence address; and (3) agree to receive correspondence from the USPTO by e-mail throughout the prosecution of the application. See 37 C.F.R. §§2.22(b), 2.23(b); TMEP §§819, 820. TEAS Plus or TEAS RF applicants who do not meet these requirements must submit an additional processing fee of $125 per class of goods and/or services. 37 C.F.R. §§2.6(a)(1)(v), 2.22(c), 2.23(c); TMEP §§819.04, 820.04. However, in certain situations, TEAS Plus or TEAS RF applicants may respond to an Office action by authorizing an examiner’s amendment by telephone or e-mail without incurring this additional fee.
How to respond. Click to file a response to this nonfinal Office action
/Monica Reid/
Monica Reid
Examining Attorney
Law Office 126
(571) 270-3961
monica.reid@uspto.gov
RESPONSE GUIDANCE