UNITED STATES PATENT AND TRADEMARK OFFICE (USPTO)
OFFICE ACTION (OFFICIAL LETTER) ABOUT APPLICANT’S TRADEMARK APPLICATION
U.S. APPLICATION SERIAL NO. 88131661
MARK: QP
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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: JIAXING HUATIANXIANG BIKE FACTORY COMPAN ETC.
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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: 1/9/2019
The referenced application has been reviewed by the assigned trademark examining attorney. Applicant must respond timely and completely to the issue(s) below. 15 U.S.C. §1062(b); 37 C.F.R. §§2.62(a), 2.65(a); TMEP §§711, 718.03.
· SECTION 2(D) REFUSAL – LIKELIHOOD OF CONFUSION
· IDENTIFICATION OF GOODS
SECTION 2(d) REFUSAL – LIKELIHOOD OF CONFUSION
Applicant's mark is QP and design for, “Clothing, namely, Sweaters, pullovers, Shirts, Suits, Trousers, waistcoats, vests, Dresses, Topcoats, Jackets as clothing, tee-shirts, Ponchos, Underwear, Pajamas, Children's clothing, namely, tops and pants, Windbreaker, Layettes as clothing, Babies' pants as clothing, Bathing trunks, Swimsuits, Raincoats, Gloves as clothing, Rain cape, Mittens, Shawls, Scarfs; footwear; headgear, namely, Bathing caps, Berets, Caps as headwear, ear muffs; Stockings; Socks; Panty hose; Ankle socks” in International Class 25. Registrant's mark is QP and stylization for “headgear, namely hats, caps, and headbands” in International Class 25.
Similarity of Marks
When comparing marks, “[t]he proper test is not a side-by-side comparison of the marks, but instead whether the marks are sufficiently similar in terms of their commercial impression such that [consumers] who encounter the marks would be likely to assume a connection between the parties.” Cai v. Diamond Hong, Inc., __ F.3d __, 127 USPQ2d 1797, 1801 (Fed. Cir. 2018) (quoting Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 1368, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012)); TMEP §1207.01(b). The proper focus is on the recollection of the average purchaser, who retains a general rather than specific impression of trademarks. In re Inn at St. John’s, LLC, 126 USPQ2d 1742, 1746 (TTAB 2018) (citing In re St. Helena Hosp., 774 F.3d 747, 750-51, 113 USPQ2d 1082, 1085 (Fed. Cir. 2014); Geigy Chem. Corp. v. Atlas Chem. Indus., Inc., 438 F.2d 1005, 1007, 169 USPQ 39, 40 (CCPA 1971)); TMEP §1207.01(b).
The respective marks are similar in that the dominant element of both marks, QP, are identical. Although marks are compared in their entireties, one feature of a mark may be more significant or dominant in creating a commercial impression. See In re Detroit Athletic Co., 903 F.3d 1297, 1305, 128 USPQ2d 1047, 1050 (Fed. Cir. 2018) (citing In re Dixie Rests., 105 F.3d 1405, 1407, 41 USPQ2d 1531, 1533-34 (Fed. Cir. 1997)); TMEP §1207.01(b)(viii), (c)(ii). Greater weight is often given to this dominant feature when determining whether marks are confusingly similar. See In re Detroit Athletic Co., 903 F.3d at 1305, 128 USPQ2d at 1050 (citing In re Dixie Rests., 105 F.3d at 1407, 41 USPQ2d at 1533-34).
The variance in the design and stylization elements in applicant’s and registrant’s mark do not obviate this refusal. When evaluating a composite mark consisting of words and a design, the word portion is normally accorded greater weight because it is likely to make a greater impression upon purchasers, be remembered by them, and be used by them to refer to or request the goods and/or services. In re Aquitaine Wine USA, LLC, 126 USPQ2d 1181, 1184 (TTAB 2018) (citing In re Viterra Inc., 671 F.3d 1358, 1362, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012)); TMEP §1207.01(c)(ii). Thus, although marks must be compared in their entireties, the word portion is often considered the dominant feature and is accorded greater weight in determining whether marks are confusingly similar, even where the word portion has been disclaimed. In re Viterra Inc., 671 F.3d at 1366-67, 101 USPQ2d at 1911 (citing Giant Food, Inc. v. Nation’s Foodservice, Inc., 710 F.2d 1565, 1570-71, 218 USPQ2d 390, 395 (Fed. Cir. 1983)).
Thus, the marks create the same overall commercial impression when used in connection with registrant's and applicant's goods and/or services. The differences between the marks are slight and do not overcome a likelihood of confusion between the marks, especially given that both marks are being applied to goods and/or services in International Class 25.
Relatedness of Goods and/or Services
Where not identical, applicant's various clothing items are closely related to registrant's headgear items.
In addition, the examining attorney has attached Internet evidence consisting of internet websites. This evidence establishes that the same entity commonly manufactures/produces/provides the relevant goods and/or services and markets the goods and/or services under the same mark. Therefore, applicant’s and registrant’s goods and/or services are considered related for likelihood of confusion purposes. See, e.g., In re Davey Prods. Pty Ltd., 92 USPQ2d 1198, 1202-04 (TTAB 2009); In re Toshiba Med. Sys. Corp., 91 USPQ2d 1266, 1268-69, 1271-72 (TTAB 2009).
Evidence obtained from the Internet may be used to support a determination under Section 2(d) that goods and/or services are related. See, e.g., In re G.B.I. Tile & Stone, Inc., 92 USPQ2d 1366, 1371 (TTAB 2009); In re Paper Doll Promotions, Inc., 84 USPQ2d 1660, 1668 (TTAB 2007). The Internet has become integral to daily life in the United States, with Census Bureau data showing approximately three-quarters of American households used the Internet in 2013 to engage in personal communications, to obtain news, information, and entertainment, and to do banking and shopping. See In re Nieves & Nieves LLC, 113 USPQ2d 1639, 1642 (TTAB 2015) (taking judicial notice of the following two official government publications: (1) Thom File & Camille Ryan, U.S. Census Bureau, Am. Cmty. Survey Reports ACS-28, Computer & Internet Use in the United States: 2013 (2014), available at http://www.census.gov/content/dam/Census/library/publications/2014/acs/acs-28.pdf, and (2) The Nat’l Telecomms. & Info. Admin. & Econ. & Statistics Admin., Exploring the Digital Nation: America’s Emerging Online Experience (2013), available at http://www.ntia.doc.gov/files/ntia/publications/exploring_the_digital_nation_-_americas_emerging_online_experience.pdf). Thus, the widespread use of the Internet in the United States suggests that Internet evidence may be probative of public perception in trademark examination.
Therefore, given the high degree of similarity between the marks and the relatedness of the goods and/or services, the undersigned concludes that consumer confusion as to the source of the goods and/or services is likely and registration is refused under Section 2(d) of the Lanham Act.
Although applicant’s mark has been refused registration, applicant may respond to the refusal(s) by submitting evidence and arguments in support of registration.
IDENTIFICATION OF GOODS/SERVICES
Applicant may adopt the following identification, if accurate. Please note that any wording in
bold below offers guidance and/or shows the changes being proposed for the identification of goods and/or services. If there is wording in the applicant's version of the
identification of goods and/or services which should be removed, it will be shown with a line through it such as this: strikethrough. When making its amendments, applicant should enter them in
standard font, not in bold.
12: Children's car seats; Baby carriages; Small wagons for children; Child safety harnesses for vehicle seats; Prams; Electric cars; Tricycles, not being toys; Bicycles; {indicate specific type, e.g., motor/mobility/water, etc.} Scooters; tires; Bicycle pumps; Motor cycles; Luggage racks for motor cars; Motorized luggage carts; electric cars for children
25: Clothing, namely, Sweaters, pullovers, Shirts, Suits, Trousers, waistcoats, vests, Dresses, Topcoats, Jackets as clothing, tee-shirts, Ponchos, Underwear, Pajamas, Children's clothing, namely, tops and pants, Windbreaker, Layettes as clothing, Babies' pants as clothing, Bathing trunks, Swimsuits, Raincoats, Gloves as clothing, Rain cape, Mittens, Shawls, Scarfs; footwear; headgear, namely, Bathing caps, Berets, Caps as headwear, namely, {indicate specific type, e.g., swimming, shower, etc.} caps; ear muffs; Stockings; Socks; Panty hose; Ankle socks
28: Games and playthings, namely, ride on toys, Building blocks as toys, Play balloons, Dominoes, Dolls, Scooters as toys, Stuffed toys, Toy models, Smart toys, namely,
electronic learning toys and electric action toys, Toy watch, gymnastic and sporting articles, namely, Billiard balls, Billiard table cushions, Knee guards for athletic use as
sports articles;, Elbow guards for athletic use as sports articles; decorations for Christmas trees; toy tricycles for children;
toy scooters; children’s ride-on toy vehicles
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.
Applicant is encouraged to call or email the assigned trademark examining attorney below to resolve the issues in this Office action. Although the USPTO will not accept an email as a response to an Office action, an applicant can communicate by phone or email to agree to a proposed amendment to the application that will immediately place the application in condition for publication, registration, or suspension. See 37 C.F.R. §2.62(c); TMEP §707.
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.
/Cassondra Anderson/
Examining Attorney
Law Office 103
(571) 272-5595
Cassondra.Anderson@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.