| To: | shusheng fang (FORTRADEMARK@OUTLOOK.COM) |
| Subject: | U.S. TRADEMARK APPLICATION NO. 88116905 - MILIND - N/A |
| Sent: | 12/15/2018 8:15:41 AM |
| Sent As: | ECOM104@USPTO.GOV |
| Attachments: |
UNITED STATES PATENT AND TRADEMARK OFFICE (USPTO)
OFFICE ACTION (OFFICIAL LETTER) ABOUT APPLICANT’S TRADEMARK APPLICATION
| U.S. APPLICATION SERIAL NO. 88116905 MARK: MILIND | |
| CORRESPONDENT ADDRESS: | CLICK HERE TO RESPOND TO THIS LETTER: http://www.uspto.gov/trademarks/teas/response_forms.jsp |
| APPLICANT: shusheng fang | |
| CORRESPONDENT’S REFERENCE/DOCKET NO: CORRESPONDENT E-MAIL ADDRESS: | |
OFFICE ACTION
TO AVOID ABANDONMENT OF APPLICANT’S TRADEMARK APPLICATION, THE USPTO MUST RECEIVE APPLICANT’S COMPLETE RESPONSE TO THIS LETTER WITHIN 6 MONTHS OF THE ISSUE/MAILING DATE BELOW. A RESPONSE TRANSMITTED THROUGH THE TRADEMARK ELECTRONIC APPLICATION SYSTEM (TEAS) MUST BE RECEIVED BEFORE MIDNIGHT EASTERN TIME OF THE LAST DAY OF THE RESPONSE PERIOD.
ISSUE/MAILING DATE: 12/15/2018
SEARCH OF OFFICE’S DATABASE OF MARKS
The trademark examining attorney has searched the Office’s database of registered and pending marks and has found no conflicting marks that would bar registration under Trademark Act Section 2(d). TMEP §704.02; see 15 U.S.C. §1052(d).
· Substitute Specimen Required
· Information About the Specimens Required
· Identification of Goods
An image of a product or packaging that has been digitally created or otherwise altered to include the mark does not show actual use of the mark in commerce. See 15 U.S.C. §1127; TMEP §§904.04(a), 904.07(a); cf. In re Chica, Inc., 84 USPQ2d 1845, 1848 (TTAB 2007) (holding that “a mere drawing of the goods with an illustration of how the mark may be displayed” was not an acceptable specimen because it did not show actual use in commerce); In re The Signal Cos., 228 USPQ 956, 957-58 n.4 (TTAB 1986) (noting that a printer’s proof of an advertisement would not be an acceptable specimen because it does not show actual use in commerce). In addition, a photo of the mark on a label, tag, or piece of paper that appears on applicant’s or a third party’s goods or packaging is generally not acceptable to show applicant’s use of the applied-for mark in commerce. See 15 U.S.C. §1127; TMEP §§904.03(a), 904.07(a). Applicant must show the mark on applicant’s own goods or packaging as it is seen by the purchasing public, with goods that have actually been sold or transported in commerce. See TMEP §904.07(a).
In this case, the specimens show the mark appearing on white label on the goods as well as on packaging for the goods. However, resolution or sharpness of the mark is different than the remaining features of the product. As a result, the specimens appear to be digitally altered or created. In addition, the mark does not appear on the first and third specimens.
An application based on Trademark Act Section 1(a) must include a specimen showing the applied-for mark in use in commerce for each international class of goods and/or services identified in the application or amendment to allege 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). “Use in commerce” means (1) a bona fide use of the applied-for mark in the ordinary course of trade (and not merely to reserve a right in the mark), (2) the mark is placed in any manner on the goods, packaging, tags or labels, or displays of the goods, and (3) the goods are actually sold or transported in commerce. See 15 U.S.C. §1127.
In addition to the examples of specimens in (2) in the above paragraph, examples of specimens for goods also include instruction manuals, containers, and webpages that include a picture or textual description of the goods associated with the mark and the means to order the goods. See TMEP §§904.03 et seq.
Applicant may respond to this refusal by satisfying one of the following for each applicable international class:
(1) Submit a different specimen (a verified “substitute” specimen) that (a) was in actual use in commerce at least as early as the filing date of the application or prior to the filing of an amendment to allege use and (b) shows the mark in actual use in commerce for the goods and/or services identified in the application or amendment to allege 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 at least as early as the filing date of the application or prior to the filing of the amendment to allege use.” The substitute specimen cannot be accepted without this statement.
(2) Amend the filing basis to intent to use under Section 1(b), for which no specimen is required. This option will later necessitate additional fee(s) and filing requirements such as providing a specimen.
For an overview of both response options referenced above and instructions on how to satisfy either option online using the Trademark Electronic Application System (TEAS) form, see the Specimen webpage.
INFORMATION ABOUT SPECIMEN REQUIRED
A specimen must show the mark as used in commerce, which means use in the ordinary course of trade (not merely to reserve a right in the mark). 15 U.S.C. §§1051, 1052, 1127. A specimen shows a mark used in commerce for goods only if it shows the mark placed on the goods, packaging, tags or labels affixed to the goods, or displays of the goods, and the goods are actually sold or transported for sale in commerce. 15 U.S.C. §1127. Because the specimen of record appears to be digitally created or altered, or is otherwise a mock-up, it does not appear to show the mark as actually used in commerce. Therefore, to permit proper examination of the application, applicant must submit additional information for the record about the specimen and how the mark as shown in the specimen is in use in commerce with applicant’s goods. See 37 C.F.R. §2.61(b); TMEP §814.
Accordingly, applicant must respond to the following questions and requests for documentation to satisfy this request for information:
(1) How are applicant’s goods sold? Specify the retail, wholesale, or other sales environment in which the goods are sold.
(2) Please provide copies of invoices, bills of sale, or other documentation of sales of the goods.
(3) Was the specimen created for submission with this application?
(4) Does the specimen show applicant’s product as it is currently being sold to consumers?
(5) How do applicant’s goods appear in the actual sales environment? If sold in stores, provide photos showing the goods for sale in the stores. If sold online, identify the websites and provide copies of the webpages showing the goods for sale. And if sold in another type of sales environment, provide photos and/or documentation showing the goods for sale in that environment.
(6) If the information in question (5) about how the goods appear in the actual sales environment is not available to applicant, then please describe how applicant’s goods are transported for sale and provide photos and other documentation showing how applicant’s mark appears on the goods and/or its packaging when the goods are being transported for sale.
See 37 C.F.R. §2.61(b); TMEP §814.
Failure to comply with a request for information is grounds for refusing registration. In re Harley, 119 USPQ2d 1755, 1757-58 (TTAB 2016); TMEP §814. Merely stating that information is available on applicant’s website is an insufficient response and will not make the relevant information of record. See In re Planalytics, Inc., 70 USPQ2d 1453, 1457-58 (TTAB 2004).
If modifying one of the duplicate entries, applicant may amend it to clarify or limit the goods and/or services, but not to broaden or expand the goods and/or services beyond those in the original application or as acceptably amended. See 37 C.F.R. §2.71(a); TMEP §1402.06. Also, generally, any deleted goods and/or services may not later be reinserted. TMEP §1402.07(e).
Applicant may adopt the following identification, if accurate (changes in bold):
Class 21: Beverage glassware; Bottle gourds; Bottle jackets, namely, fitted reusable polyethylene coverings used to protect glass bottles containing hazardous liquids; Bottle openers; Bottle openers, electric and non-electric; Bottle pourers; Bottle sleeves composed of liquid-absorbing micro fiber fabric; Bottle squeegees; Bottle stands; Bottle stoppers specially adapted for use with vacuum bottles; Bottle stoppers specially adapted for use with wine bottles; Bottles for pharmaceuticals sold empty; Bottles, sold empty; Cup lids; Cupcake baking cups; Cupcake molds; Cups; Cups and mugs; Cups, not of precious metal; Drinking bottles for sports; Drinking cups; Drinking cups and saucers; Drinking cups for babies and children; Drinking cups for babies and children and parts and fittings therefor, namely, cups for babies and children sold as a unit with valves and lids; Drinking cups for children and parts and fittings therefor, namely, drinking cups for children sold as a unit with non-insulated lids; Drinking cups for infants and parts and fittings therefor, namely, valves and lids sold as a unit; Drinking cups sold with lids therefor; Drinking flasks; Drinking glasses; Drinking glasses, namely, tumblers; Drinking straw dispensers; Drinking straw holders; Drinking straws; Drinking straws for babies and children; Drinking straws of glass; Drinking troughs for animals; Drinking troughs for livestock; Jugs; Jugs; Jugs, not of precious metal; Mug trees; Mugs; Mugs of precious metal; Mugs, not of precious metal; Watering pots; Aluminum water bottles sold empty; Animal activated livestock waterers; Apparatus for cleaning teeth and gums using high pressure water for home use; Barware, namely, seltzer bottles; Beakers, namely, wide-mouthed drinking cups for household use; Beer jugs; Beer mugs; Beer funnel and tubing sold together as a unit for drinking beer; Biodegradable paper pulp-based plates, bowls and cups; Cardboard cups; Coffee cups; Coffee cups, tea cups and mugs; Coffee mugs; Cold packs for chilling food and beverages; Compostable and biodegradable plates, bowls, cups and trays; Concession dispensing equipment, namely, portable chilled beverage dispensers; Cream jugs; Crockery, namely, pots, dishes, drinking cups and saucers, bowls, serving bowls and trays; Decorative sand bottles; Decorative small glass bottles containing saw dust memorabilia; Demitasse sets comprised of cups and saucers; Demitasse sets comprised of cups, saucers and stirring spoons sold as a unit; Dewar bottles and vessels; Disposable beverage lid with an integrated press and plunger for placement on any cup for the purpose of infusing beverages; Double wall cups; Double wall cups with lids; Double wall cups with lids and straws; Earthenware mugs; Egg cups; Egg cups; Empty water bottles for bicycles; Empty spray bottles; Fabric beverage sleeves featuring attached muffs to keep hands warm while holding drinks; Floating drink holders; Foam drink holders; Glass mugs; Growlers; Hair color application bottles; Heat-insulated containers for beverages; Heaters for feeding bottles, non-electric; Inflatable drink holders; Insulated mugs; Insulated bags for food or beverage for domestic use; Insulated carriers for food and beverages; Insulated containers for beverage cans for domestic use; Insulated containers for food or beverage for domestic use; Insulated containers for food or beverages; Insulating sleeve holder for beverage cups; Insulating sleeve holder for bottles; Insulating sleeve holders for beverage cans; Lids with drinking spouts for reusable water bottles; Mixing cups; Neoprene zippered bottle holders; Non-electric heaters for feeding bottles; Non-electric portable beverage coolers; Non-mechanized pet waterers in the nature of portable water and fluid dispensers for pets; Nozzles for watering cans; Paper cupcake baking liners; Paper cups; Paper and plastic cups; Paper baking cups; Paper plates and paper cups; Perfume bottles sold empty; Pet drinking bowls; Pet feeding and drinking bowls; Pet grooming device comprising a built in brush head and an attachment that connects to a water source; Pet grooming device comprising a sprayer nozzle and an attachment that connects to a water source and to a reservoir for a conditioning agent; Pilsner drinking glasses; Plastic bottle with blown cavity insert sold empty; Plastic cups; Plastic drink bottle identification tag; Plastic water bottle holders and attached carabiner clip sold as a unit; Plastic water bottles sold empty; Plastic holder for beverage containers to be affixed to walls; Porcelain mugs; Portable beverage container holder; Portable beverage dispensers; Portable ice chests for food and beverages; Re-usable or disposable plastic or silicone valves sold for use with training cups for babies and children; Recyclable flexible plastic pouches sold empty for holding water or nutritional liquids; Reusable plastic water bottles sold empty; Reusable self-sealing lids for household use for bowls, cups, containers and the storage of food; Reusable stainless steel water bottles sold empty; Reusable straw-fitted beverage lids for placement on jars for household use; Roller bottles, sold empty; Roses for watering cans; Sake cups; Sake serving bottles (tokkuri); Semi-processed cellular glass for making filters, namely, filters for sewage and waste water treatment; Servingware for serving food and drinks; Shaker bottles sold empty; Shut-off valves for water sprinkler nozzles; Silicone cupcake baking liners; Silicone baking cups; Siphon bottles for carbonated water; Sippy cups; Small jugs; Sports bottles sold empty; Squeeze bottles sold empty; Stirring rods for beverages; Stirring rods of precious metal for beverages; Straws for drinking; Syrup jugs; Thermal insulated bags for food or beverages; Thermal insulated containers for food or beverages; Training cups for babies and children; Training cups for infants; Tumblers for use as drinking glasses; Vacuum bottle stoppers; Vacuum bottle stoppers specially adapted for use with wine bottles; Vacuum bottles; Vacuum bottles; Vacuum mugs; Vacuum pumps for wine bottles; Wine bottle cradles; Wine bottle vests specially adapted for decorating wine bottles; Wine jugs
For assistance with identifying and classifying goods and services in trademark applications, please see the USPTO’s online searchable U.S. Acceptable Identification of Goods and Services Manual. See TMEP §1402.04.
TRADEMARK COUNSEL
For attorney referral information, applicant may consult the American Bar Association’s Consumers’ Guide to Legal Help; an online directory of legal professionals, such as FindLaw®; or a local telephone directory. The USPTO, however, may not assist an applicant in the selection of a private attorney. 37 C.F.R. §2.11.
ASSISTANCE
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.
/Michael Eisnach/
Examining Attorney
Law Office 104
(571) 272-2592
Michael.Eisnach@uspto.gov
TO RESPOND TO THIS LETTER: Go to http://www.uspto.gov/trademarks/teas/response_forms.jsp. Please wait 48-72 hours from the issue/mailing date before using the Trademark Electronic Application System (TEAS), to allow for necessary system updates of the application. For technical assistance with online forms, e-mail TEAS@uspto.gov. For questions about the Office action itself, please contact the assigned trademark examining attorney. E-mail communications will not be accepted as responses to Office actions; therefore, do not respond to this Office action by e-mail.
All informal e-mail communications relevant to this application will be placed in the official application record.
WHO MUST SIGN THE RESPONSE: It must be personally signed by an individual applicant or someone with legal authority to bind an applicant (i.e., a corporate officer, a general partner, all joint applicants). If an applicant is represented by an attorney, the attorney must sign the response.
PERIODICALLY CHECK THE STATUS OF THE APPLICATION: To ensure that applicant does not miss crucial deadlines or official notices, check the status of the application every three to four months using the Trademark Status and Document Retrieval (TSDR) system at http://tsdr.uspto.gov/. Please keep a copy of the TSDR status screen. If the status shows no change for more than six months, contact the Trademark Assistance Center by e-mail at TrademarkAssistanceCenter@uspto.gov or call 1-800-786-9199. For more information on checking status, see http://www.uspto.gov/trademarks/process/status/.
TO UPDATE CORRESPONDENCE/E-MAIL ADDRESS: Use the TEAS form at http://www.uspto.gov/trademarks/teas/correspondence.jsp.