To: | Handsome Devil Inc. (sftrademarks@nixonpeabody.com) |
Subject: | U.S. Trademark Application Serial No. 88134908 - BEAUTIFULLY BROKEN - 084125-009 |
Sent: | July 01, 2020 12:34:12 PM |
Sent As: | ecom121@uspto.gov |
Attachments: | Attachment - 1 Attachment - 2 Attachment - 3 Attachment - 4 Attachment - 5 Attachment - 6 Attachment - 7 Attachment - 8 Attachment - 9 Attachment - 10 |
United States Patent and Trademark Office (USPTO)
Office Action (Official Letter) About Applicant’s Trademark Application
U.S. Application Serial No. 88134908
Mark: BEAUTIFULLY BROKEN
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Correspondence Address:
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Applicant: Handsome Devil Inc.
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Reference/Docket No. 084125-009
Correspondence Email Address: |
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NONFINAL 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). A link to the appropriate TEAS response form appears at the end of this Office action.
Issue date: July 01, 2020
INTRODUCTION
On October 16, 2018, action on this application was suspended pending the disposition of U.S. Application Serial Nos. 87555172 and 88007978. The referenced pending applications have abandoned and are no longer a potential bar to the registration of applicant’s mark.
Based upon this evidence, the trademark examining attorney is taking further action, as specified below. See TMEP §1715.02(b).
SECTIONS 1, 2, 3, AND 45 REFUSAL – MARK IS A WIDELY-USED COMMONPLACE EXPRESSION
Terms and expressions that merely convey an informational message are not registrable. In re Eagle Crest, Inc., 96 USPQ2d 1227, 1229 (TTAB 2010). Determining whether the term or expression functions as a trademark or service mark depends on how it would be perceived by the relevant public. In re Wal-Mart Stores, Inc., 129 USPQ2d at 1150 (citing D.C. One Wholesaler, Inc. v. Chien, 120 USPQ2d 1710, 1713 (TTAB 2016)); In re Eagle Crest, Inc., 96 USPQ2d at 1229; TMEP §1202.04. “The more commonly a [term or expression] is used, the less likely that the public will use it to identify only one source and the less likely that it will be recognized by purchasers as a trademark [or service mark].” In re Hulting, 107 USPQ2d 1175, 1177 (TTAB 2013) (quoting In re Eagle Crest, Inc., 96 USPQ2d at 1229); TMEP §1202.04(b).
The attached evidence consisting of screenshots from third-party webpages shows that this term or expression is commonly used to refer to someone who embraces their personal flaws and conveys a common motivational sentiment or message. Because consumers are accustomed to seeing this expression commonly used in everyday speech by many different sources, they would not perceive it as a mark identifying the source of applicant’s goods but rather as only conveying an informational message.
An applicant may not overcome this refusal by amending the application to seek registration on the Supplemental Register or asserting a claim of acquired distinctiveness under Section 2(f). TMEP §1202.04(d); see In re Eagle Crest, Inc., 96 USPQ2d at 1229. Nor will submitting a substitute specimen overcome this refusal. See TMEP §1202.04(d).
HOW TO RESPOND TO THIS OFFICE ACTION
Click to file a response to this nonfinal Office action.
/Hannah Gilbert/
Trademark Examining Attorney
Law Office 121
(571) 272-5029
hannah.gilbert@uspto.gov
RESPONSE GUIDANCE