To: | EURO INDIA FRESH FOODS LIMITED (David@gearhartlaw.com) |
Subject: | U.S. Trademark Application Serial No. 88090930 - EURO - 3079EIF2TM1 |
Sent: | December 04, 2020 07:47:42 AM |
Sent As: | ecom119@uspto.gov |
Attachments: |
United States Patent and Trademark Office (USPTO)
Office Action (Official Letter) About Applicant’s Trademark Application
U.S. Application Serial No. 88090930
Mark: EURO
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Correspondence Address:
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Applicant: EURO INDIA FRESH FOODS LIMITED
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Reference/Docket No. 3079EIF2TM1
Correspondence Email Address: |
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FINAL 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) and/or Electronic System for Trademark Trials and Appeals (ESTTA). A link to the appropriate TEAS response form and/or to ESTTA for an appeal appears at the end of this Office action.
Issue date: December 04, 2020
This Office action is in response to applicant’s communication filed on November 16, 2020.
Specimen does not show use of the mark in commerce. The specimen refusal in Class 35 is hereby made FINAL because the specimen does not show the applied-for mark in used in commerce for the identified services in Class 35. Trademark Act Sections 1 and 45, 15 U.S.C. §§1051, 1127; 37 C.F.R. §§2.34(a)(1)(iv), 2.56(a); TMEP §§904, 904.07(a), 1301.04(g)(i). An application based on Trademark Act Section 1(a) must include a specimen showing the applied-for mark as actually used in commerce for each international class of services identified in the statement of use. 15 U.S.C. §1051(a)(1); 37 C.F.R. §§2.34(a)(1)(iv), 2.56(a); TMEP §§904, 904.07(a).
Specifically, the applicant’s services are identified as: Online retail store services featuring food products; online wholesale and retail store services featuring food products; wholesale and retail store services featuring food products; import and export agency services. The specimens are printouts from the applicant’s web site which advertise the applicant’s various food products. However, the specimen is not acceptable to show use of the mark in connection with any of the retail or wholesale services set forth in the identification because the goods are not offered for sale on the web site; there is no option to purchase the goods, download the goods to a shopping cart, pricing information, or other retail information that would typically be found in an online retail store. Note, the examining attorney has also viewed the actual web site (not just the specimens submitted by the applicant) and there is no option on the web site to make purchases either. Clicking on an image of any of the products brings up a pop up of the individual product, but no information other than the image of the goods. The specimens also fail to show use of the mark in connection with “import and export agency services” as this service refers to an activity that is provided for others. Even if the specimen showed that the applicant was exporting its foods to other countries, this would not be considered a service under the Trademark Act, because it is not an activity that is done for the benefit of others. Moreover, the applicant did not provide the webpage’s URL and the date is was accessed or printed.
Examples of specimens. Specimens for services must show a direct association between the mark and the services and include: (1) copies of advertising and marketing material, (2) a photograph of business signage or billboards, or (3) materials showing the mark in the sale, rendering, or advertising of the services. See 37 C.F.R. §2.56(b)(2), (c); TMEP §1301.04(a), (h)(iv)(C). Any webpage printout or screenshot submitted as a specimen must include the webpage’s URL and the date it was accessed or printed on the specimen itself, within the TEAS form that submits the specimen, or in a verified statement under 37 C.F.R. §2.20 or 28 U.S.C. §1746 in a later-filed response. See 37 C.F.R. §2.56(c); TMEP §§904.03(i), 1301.04(a).
Response option. Applicant may respond to this refusal by submitting, for each applicable international class, a different specimen (a verified “substitute” specimen) that (a) was in actual use in commerce prior to the expiration of the deadline for filing the statement of use and (b) shows the mark in actual use in commerce for the services identified in the statement of use. A “verified substitute specimen” is a specimen that is accompanied by the following statement made in a signed affidavit or supported by a declaration under 37 C.F.R. §2.20: “The substitute (or new, or originally submitted, if appropriate) specimen(s) was/were in use in commerce prior to expiration of the filing deadline for filing a statement of use.” The substitute specimen cannot be accepted without this statement.
Applicant may not withdraw the statement of use. See 37 C.F.R. §2.88(f); TMEP §1109.17.
For an overview of this response option and instructions on how to submit a different specimen using the online Trademark Electronic Application System (TEAS) form, see the Specimen webpage.
In such case, the application will proceed for the following classes only: Classes 29, 30 and 32.
Applicant may respond to this final Office action by providing one or both of the following:
(1) A request for reconsideration that fully resolves all outstanding requirements and refusals; and/or
(2) An appeal to the Trademark Trial and Appeal Board with the required filing fees.
TMEP §715.01; see 37 C.F.R. §2.63(b)(1)-(2).
How to respond. Click to file a request for reconsideration of this final Office action that fully resolves all outstanding requirements and refusals and/or click to file a timely appeal to the Trademark Trial and Appeal Board (TTAB) with the required filing fee(s).
/Patty Evanko/
Patty Evanko
Examining Attorney
Law Office 119
571-272-9404
patty.evanko@uspto.gov (informal questions only)
RESPONSE GUIDANCE