UNITED STATES PATENT AND TRADEMARK OFFICE (USPTO)
OFFICE ACTION (OFFICIAL LETTER) ABOUT APPLICANT’S TRADEMARK APPLICATION
U.S. APPLICATION SERIAL NO. 88117352
MARK: DAD BODY DIET
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CORRESPONDENT ADDRESS: |
CLICK HERE TO RESPOND TO THIS LETTER: http://www.gov.uspto.report/trademarks/teas/response_forms.jsp
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APPLICANT: Super Training Products LLC
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CORRESPONDENT’S REFERENCE/DOCKET NO: CORRESPONDENT E-MAIL ADDRESS: |
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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: 12/6/2018
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).
SECTION 2(e)(1) REFUSAL - MERELY DESCRIPTIVE
A mark is merely descriptive if it describes a feature or subject matter of an applicant’s goods. TMEP §1209.01(b); see, e.g., In re TriVita, Inc., 783 F.3d 872, 874, 114 USPQ2d 1574, 1575 (Fed. Cir. 2015) (quoting In re Oppedahl & Larson LLP, 373 F.3d 1171, 1173, 71 USPQ2d 1370, 1371 (Fed. Cir. 2004)); In re Steelbuilding.com, 415 F.3d 1293, 1297, 75 USPQ2d 1420, 1421 (Fed. Cir. 2005) (citing Estate of P.D. Beckwith, Inc. v. Comm’r of Patents, 252 U.S. 538, 543 (1920)).
“Whether consumers could guess what the product [or service] is from consideration of the mark alone is not the test.” In re Am. Greetings Corp., 226 USPQ 365, 366 (TTAB 1985).
Applicant’s applied-for mark is “DAD BODY DIET” for “Series of non-fiction books in the field of diet, nutrition, and fitness” in Class 16.
The attached evidence from http://www.urbandictionary.com/define.php?term=Dad%20bod shows that the term “DAD BODY” means “a male body type that is best described as ‘softly round’.” Additionally, the attached evidence from http://en.wikipedia.org/wiki/Dad_bod shows that the term “DAD BODY” means “a body shape particular to middle-aged men.” The attached evidence from http://www.daddy-geek.com/how-to-get-rid-of-your-dad-body/ (an online article about “HOW TO GET RID OF YOUR ‘DAD’ BODY”), http://www.muscleandfitness.com/workouts/full-body-exercises/5-crossfit-workouts-eliminate-your-dad-bod (an online article about “5 CROSSFIT WORKOUTS TO ELIMINATE YOUR DAD BOD”), http://newmiddleclassdad.com/anti-dad-bod-workout/ (an online article about “9 Best Anti-Dad Bod Workout Tips You Probably Didn’t Know”), http://www.mensjournal.com/health-fitness/high-intensity-anti-dad-bod-workout/ (an online article about “The High Intensity Anti-‘Dad Bod’ Workout”), and http://www.eatthis.com/6-ways-combat-dad-bod/ (an online article about “6 Ways to Combat Dad Bod”) shows that the wording “DAD BODY” is commonly used as the subject matter of the diet, nutrition and fitness genre of writing.
The attached evidence from http://www.ahdictionary.com/word/search.html?q=diet shows the wording “DIET” means “a regulated selection of foods, as for medical reasons or cosmetic weight loss.” Applicant’s books are in the field of “diet, nutrition, and fitness.” Applicant has also voluntarily disclaimed this wording, thereby conceding its descriptiveness.
Only where the combination of descriptive terms creates a unitary mark with a unique, incongruous, or otherwise nondescriptive meaning in relation to the goods is the combined mark registrable. See In re Colonial Stores, Inc., 394 F.2d 549, 551, 157 USPQ 382, 384 (C.C.P.A. 1968); In re Positec Grp. Ltd., 108 USPQ2d 1161, 1162-63 (TTAB 2013).
In this case, each term in the applied-for mark describes a feature or subject matter of applicant’s goods, as described above. In combination, the applied-for mark retains its merely descriptive meaning because it directly advises consumers that its books will be diet books for those with a “dad bod.” Therefore, the combined wording “DAD BODY DIET” is merely descriptive of applicant’s goods.
Accordingly, registration is refused under Section 2(e)(1) of the Trademark Act.
SUPPLEMENTAL REGISTER ADVISORY
If applicant files an acceptable allegation of use and also amends to the Supplemental Register, the application effective filing date will be the date applicant met the minimum filing requirements under 37 C.F.R. §2.76(c) for an amendment to allege use. TMEP §§816.02, 1102.03; see 37 C.F.R. §2.75(b). In addition, the undersigned trademark examining attorney will conduct a new search of the USPTO records for conflicting marks based on the later application filing date. TMEP §§206.01, 1102.03.
RESPONSE TO OFFICE ACTION
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.
/Corinne Kleinman/
Examining Attorney
Law Office 122
(571) 272-7461
corinne.kleinman@uspto.gov
TO RESPOND TO THIS LETTER: Go to http://www.gov.uspto.report/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.gov.uspto.report/. 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.gov.uspto.report/trademarks/process/status/.
TO UPDATE CORRESPONDENCE/E-MAIL ADDRESS: Use the TEAS form at http://www.gov.uspto.report/trademarks/teas/correspondence.jsp.