Under the Paperwork Reduction Act of 1995 no persons are required to respond to a collection of information unless it displays a valid OMB control number.
PTO Form 1957 (Rev 10/2011)
OMB No. 0651-0050 (Exp 09/20/2020)

Response to Office Action

The table below presents the data as entered.

Input Field
Entered
SERIAL NUMBER88149690
LAW OFFICE ASSIGNEDLAW OFFICE 107
MARK SECTION
MARK https://tmng-al.uspto.gov/resting2/api/img/88149690/large
LITERAL ELEMENT FIELD FOAM
STANDARD CHARACTERS YES
USPTO-GENERATED IMAGE YES
MARK STATEMENT The mark consists of standard characters, without claim to any particular font style, size or color.
ARGUMENT(S)
In regard to the examiner's assertions the mark is merely descriptive under section 2(e)(1) and that the mark "field foam" identifies the form and intended area of use of the goods. Applicant's use of the formative "field" seeks only to draw on the suggestive inferences and associations to large open spaces. Such inferences broadly create an aesthetic impression that lends itself to the qualities of Applicant's products. Applicant's goods are primarily directed to hunters. Particularly hunters of big game (e.g. deer, elk, bear) who are concerned with the covering, masking and/or elimination of human scent, whether borne in the air or deposited on the ground, grass, bushes, trees or the like that a hunter might contact while afield hunting and which might be scented by a prey species having well developed scenting capabilities. Such hunting activities primarily occur in wooded terrain, not fields. Most commonly, the hunter occupies a blind or tree stand as he/she awaits passage of the prey species having a particularly acute sense of smell. The mark thus does not identify the intended area of use of the goods. Rather the formative "field" distinguishes the goods to land based activities. Although some of applicant's products do use a foaming carrier as part of an admixture to disseminate particular admixed scents and sealants. Such a carrier is believed novel in that Applicant is not aware that foaming carriers have ever been used in conjunction with mixture preparations for hunting etc. such as sold by applicant under the mark. Foams more typically are used in shaving creams. Applicant previously disclaimed use of the term "FOAM" apart from the mark. Applicant thus seeks to register the collective two-word combination mark which combination is not believed descriptive. Rather the mark is believed suggestive with respect to applicant?s normal channels of commerce and when considered as a whole. The "FIELD" formative suggests wide-open spaces and the inclusion of the "FOAM" formative creates a suggestive and unusual impression with respect to the normal consumer and therefore does not directly describe the goods nor the intended use. Taken as a whole, the mark thus does not directly describe the nature of the goods to the consumer. It should also be noted that within applicant's normal channels of commerce, products competitive to those sold under the subject mark are sold in the form of sprays, hand-applied lotions and roll-ons. The examiner has noted this difference in her review of applicant's specimens, the examiner's attachments to this action and her comments to "sprays". Applicant's use of the formative "foam" formative is thus unusual. Upon a consumer?s first exposure to the mark, the consumer is left only with a suggestive inference. The consumer must make additional inquiries and take additional steps to ascertain the specific nature and intended use of the goods.
GOODS AND/OR SERVICES SECTION (003)(current)
INTERNATIONAL CLASS003
DESCRIPTION
Scent containment, scent elimination and scent control personal care products for use associated with hunting and outdoor recreation activities dispensed in the form of foams, lotions, powders, roll-ons, sprays and wipes, namely, scent containment sealants, cover scents, masking scents, and body odor control scents
FILING BASISSection 1(a)
        FIRST USE ANYWHERE DATE At least as early as 10/01/2017
        FIRST USE IN COMMERCE DATE At least as early as 10/01/2017
GOODS AND/OR SERVICES SECTION (003)(proposed)
INTERNATIONAL CLASS003
TRACKED TEXT DESCRIPTION
Scent containment, scent elimination and scent control personal care products for use associated with hunting and outdoor recreation activities dispensed in the form of foams, lotions, powders, roll-ons, sprays and wipes, namely, scent containment sealants, cover scents, masking scents, and body odor control scents; Scent elimination and scent control personal care preparations for use associated with hunting and outdoor recreation activities, namely body lotions, body powders, foot powders and body deodorants.
FINAL DESCRIPTION
Scent elimination and scent control personal care preparations for use associated with hunting and outdoor recreation activities, namely body lotions, body powders, foot powders and body deodorants.
FILING BASISSection 1(a)
       FIRST USE ANYWHERE DATE At least as early as 10/01/2017
       FIRST USE IN COMMERCE DATE At least as early as 10/01/2017
GOODS AND/OR SERVICES SECTION (028)(current)
INTERNATIONAL CLASS028
DESCRIPTION
Scent containment, scent elimination and scent control products for use associated with hunting and outdoor recreation activities, namely, scent containment sealants, masking scents, cover scents and body odor control applicants dispensed in the form of foams, lotions, powders, roll-ons, sprays and wipes
FILING BASISSection 1(a)
        FIRST USE ANYWHERE DATE At least as early as 10/01/2017
        FIRST USE IN COMMERCE DATE At least as early as 10/01/2017
GOODS AND/OR SERVICES SECTION (028)(proposed)
INTERNATIONAL CLASS028
TRACKED TEXT DESCRIPTION
Scent containment, scent elimination and scent control products for use associated with hunting and outdoor recreation activities, namely, scent containment sealants, masking scents, cover scents and body odor control applicants dispensed in the form of foams, lotions, powders, roll-ons, sprays and wipes; Scent containment, scent elimination and scent control preparations for use during hunting and outdoor recreation activities, namely, scent containment sealants, masking scents, cover scents, attractor scents and body odor control scents dispensed in the form of foams, lotions, powders, roll-ons, sprays and wipes.
FINAL DESCRIPTION
Scent containment, scent elimination and scent control preparations for use during hunting and outdoor recreation activities, namely, scent containment sealants, masking scents, cover scents, attractor scents and body odor control scents dispensed in the form of foams, lotions, powders, roll-ons, sprays and wipes.
FILING BASISSection 1(a)
       FIRST USE ANYWHERE DATE At least as early as 10/01/2017
       FIRST USE IN COMMERCE DATE At least as early as 10/01/2017
ADDITIONAL STATEMENTS SECTION
MISCELLANEOUS STATEMENT The examiner has also requested additional information in regard to 1) whether "FIELD" has any significance in the hunting or outdoor recreation trade or industry, or 2) applicant's goods, or 3) if such wording is a term of art within applicant's industry. In response thereto applicant states that FIELD has no specific significance within applicant's industry or within the broader hunting or outdoor recreation trade or industry. FIELD can comprise any type of field whether cultivated or non-cultivated. For example, one of several uses of the term as set out in Webster's dictionary defines "field" as a(1): an open land area free of woods and buildings; (2): an area of land marked by the presence of particular objects or features; b(1): an area of cleared enclosed land used for cultivation or pasture; (2): land containing a natural resource; (3): airfield; c: battlefield - the place where a battle is fought; d: a large unbroken expanse (as of ice). Field as used by applicant is intended to suggest the broad concept of the great outdoors and/or open spaces akin to the foregoing "land containing a natural resource". See also reg. no. 4547032 (FIELD N' FOREST) and the numerous FIELD & STREAM registrations where the formative is used in a similar fashion in unrelated industries.
SIGNATURE SECTION
RESPONSE SIGNATURE /DOUGLAS TSCHIDA/
SIGNATORY'S NAME DOUGLAS TSCHIDA
SIGNATORY'S POSITION ATTORNEY OF RECORD, MINNESOTA bar member
SIGNATORY'S PHONE NUMBER 6514888285
DATE SIGNED 03/11/2019
AUTHORIZED SIGNATORY YES
FILING INFORMATION SECTION
SUBMIT DATE Mon Mar 11 14:25:48 EDT 2019
TEAS STAMP USPTO/ROA-XXX.XXX.XXX.XXX
-20190311142548802763-881
49690-6209a194a5cf76ede3b
2fb576f30329f912796497a93
c196c2cb3dbc84a43040d1-N/
A-N/A-2019031113220700977
6


Under the Paperwork Reduction Act of 1995 no persons are required to respond to a collection of information unless it displays a valid OMB control number.
PTO Form 1957 (Rev 10/2011)
OMB No. 0651-0050 (Exp 09/20/2020)

Response to Office Action

To the Commissioner for Trademarks:

Application serial no. 88149690 FIELD FOAM(Standard Characters, see https://tmng-al.uspto.gov/resting2/api/img/88149690/large) has been amended as follows:

ARGUMENT(S)
In response to the substantive refusal(s), please note the following:

In regard to the examiner's assertions the mark is merely descriptive under section 2(e)(1) and that the mark "field foam" identifies the form and intended area of use of the goods. Applicant's use of the formative "field" seeks only to draw on the suggestive inferences and associations to large open spaces. Such inferences broadly create an aesthetic impression that lends itself to the qualities of Applicant's products. Applicant's goods are primarily directed to hunters. Particularly hunters of big game (e.g. deer, elk, bear) who are concerned with the covering, masking and/or elimination of human scent, whether borne in the air or deposited on the ground, grass, bushes, trees or the like that a hunter might contact while afield hunting and which might be scented by a prey species having well developed scenting capabilities. Such hunting activities primarily occur in wooded terrain, not fields. Most commonly, the hunter occupies a blind or tree stand as he/she awaits passage of the prey species having a particularly acute sense of smell. The mark thus does not identify the intended area of use of the goods. Rather the formative "field" distinguishes the goods to land based activities. Although some of applicant's products do use a foaming carrier as part of an admixture to disseminate particular admixed scents and sealants. Such a carrier is believed novel in that Applicant is not aware that foaming carriers have ever been used in conjunction with mixture preparations for hunting etc. such as sold by applicant under the mark. Foams more typically are used in shaving creams. Applicant previously disclaimed use of the term "FOAM" apart from the mark. Applicant thus seeks to register the collective two-word combination mark which combination is not believed descriptive. Rather the mark is believed suggestive with respect to applicant?s normal channels of commerce and when considered as a whole. The "FIELD" formative suggests wide-open spaces and the inclusion of the "FOAM" formative creates a suggestive and unusual impression with respect to the normal consumer and therefore does not directly describe the goods nor the intended use. Taken as a whole, the mark thus does not directly describe the nature of the goods to the consumer. It should also be noted that within applicant's normal channels of commerce, products competitive to those sold under the subject mark are sold in the form of sprays, hand-applied lotions and roll-ons. The examiner has noted this difference in her review of applicant's specimens, the examiner's attachments to this action and her comments to "sprays". Applicant's use of the formative "foam" formative is thus unusual. Upon a consumer?s first exposure to the mark, the consumer is left only with a suggestive inference. The consumer must make additional inquiries and take additional steps to ascertain the specific nature and intended use of the goods.

CLASSIFICATION AND LISTING OF GOODS/SERVICES
Applicant proposes to amend the following class of goods/services in the application:
Current: Class 003 for Scent containment, scent elimination and scent control personal care products for use associated with hunting and outdoor recreation activities dispensed in the form of foams, lotions, powders, roll-ons, sprays and wipes, namely, scent containment sealants, cover scents, masking scents, and body odor control scents
Original Filing Basis:
Filing Basis: Section 1(a), Use in Commerce: The applicant is using the mark in commerce, or the applicant's related company or licensee is using the mark in commerce, on or in connection with the identified goods and/or services. 15 U.S.C. Section 1051(a), as amended. The mark was first used at least as early as 10/01/2017 and first used in commerce at least as early as 10/01/2017 , and is now in use in such commerce.

Proposed:
Tracked Text Description: Scent containment, scent elimination and scent control personal care products for use associated with hunting and outdoor recreation activities dispensed in the form of foams, lotions, powders, roll-ons, sprays and wipes, namely, scent containment sealants, cover scents, masking scents, and body odor control scents; Scent elimination and scent control personal care preparations for use associated with hunting and outdoor recreation activities, namely body lotions, body powders, foot powders and body deodorants.

Class 003 for Scent elimination and scent control personal care preparations for use associated with hunting and outdoor recreation activities, namely body lotions, body powders, foot powders and body deodorants.
Filing Basis: Section 1(a), Use in Commerce: The applicant is using the mark in commerce, or the applicant's related company or licensee is using the mark in commerce, on or in connection with the identified goods and/or services. 15 U.S.C. Section 1051(a), as amended. The mark was first used at least as early as 10/01/2017 and first used in commerce at least as early as 10/01/2017 , and is now in use in such commerce.
Applicant proposes to amend the following class of goods/services in the application:
Current: Class 028 for Scent containment, scent elimination and scent control products for use associated with hunting and outdoor recreation activities, namely, scent containment sealants, masking scents, cover scents and body odor control applicants dispensed in the form of foams, lotions, powders, roll-ons, sprays and wipes
Original Filing Basis:
Filing Basis: Section 1(a), Use in Commerce: The applicant is using the mark in commerce, or the applicant's related company or licensee is using the mark in commerce, on or in connection with the identified goods and/or services. 15 U.S.C. Section 1051(a), as amended. The mark was first used at least as early as 10/01/2017 and first used in commerce at least as early as 10/01/2017 , and is now in use in such commerce.

Proposed:
Tracked Text Description: Scent containment, scent elimination and scent control products for use associated with hunting and outdoor recreation activities, namely, scent containment sealants, masking scents, cover scents and body odor control applicants dispensed in the form of foams, lotions, powders, roll-ons, sprays and wipes; Scent containment, scent elimination and scent control preparations for use during hunting and outdoor recreation activities, namely, scent containment sealants, masking scents, cover scents, attractor scents and body odor control scents dispensed in the form of foams, lotions, powders, roll-ons, sprays and wipes.

Class 028 for Scent containment, scent elimination and scent control preparations for use during hunting and outdoor recreation activities, namely, scent containment sealants, masking scents, cover scents, attractor scents and body odor control scents dispensed in the form of foams, lotions, powders, roll-ons, sprays and wipes.
Filing Basis: Section 1(a), Use in Commerce: The applicant is using the mark in commerce, or the applicant's related company or licensee is using the mark in commerce, on or in connection with the identified goods and/or services. 15 U.S.C. Section 1051(a), as amended. The mark was first used at least as early as 10/01/2017 and first used in commerce at least as early as 10/01/2017 , and is now in use in such commerce.
ADDITIONAL STATEMENTS
Miscellaneous Statement
The examiner has also requested additional information in regard to 1) whether "FIELD" has any significance in the hunting or outdoor recreation trade or industry, or 2) applicant's goods, or 3) if such wording is a term of art within applicant's industry. In response thereto applicant states that FIELD has no specific significance within applicant's industry or within the broader hunting or outdoor recreation trade or industry. FIELD can comprise any type of field whether cultivated or non-cultivated. For example, one of several uses of the term as set out in Webster's dictionary defines "field" as a(1): an open land area free of woods and buildings; (2): an area of land marked by the presence of particular objects or features; b(1): an area of cleared enclosed land used for cultivation or pasture; (2): land containing a natural resource; (3): airfield; c: battlefield - the place where a battle is fought; d: a large unbroken expanse (as of ice). Field as used by applicant is intended to suggest the broad concept of the great outdoors and/or open spaces akin to the foregoing "land containing a natural resource". See also reg. no. 4547032 (FIELD N' FOREST) and the numerous FIELD & STREAM registrations where the formative is used in a similar fashion in unrelated industries.


SIGNATURE(S)
Response Signature
Signature: /DOUGLAS TSCHIDA/     Date: 03/11/2019
Signatory's Name: DOUGLAS TSCHIDA
Signatory's Position: ATTORNEY OF RECORD, MINNESOTA bar member

Signatory's Phone Number: 6514888285

The signatory has confirmed that he/she is an attorney who is a member in good standing of the bar of the highest court of a U.S. state, which includes the District of Columbia, Puerto Rico, and other federal territories and possessions; and he/she is currently the owner's/holder's attorney or an associate thereof; and to the best of his/her knowledge, if prior to his/her appointment another U.S. attorney or a Canadian attorney/agent not currently associated with his/her company/firm previously represented the owner/holder in this matter: (1) the owner/holder has filed or is concurrently filing a signed revocation of or substitute power of attorney with the USPTO; (2) the USPTO has granted the request of the prior representative to withdraw; (3) the owner/holder has filed a power of attorney appointing him/her in this matter; or (4) the owner's/holder's appointed U.S. attorney or Canadian attorney/agent has filed a power of attorney appointing him/her as an associate attorney in this matter.

        
Serial Number: 88149690
Internet Transmission Date: Mon Mar 11 14:25:48 EDT 2019
TEAS Stamp: USPTO/ROA-XXX.XXX.XXX.XXX-20190311142548
802763-88149690-6209a194a5cf76ede3b2fb57
6f30329f912796497a93c196c2cb3dbc84a43040
d1-N/A-N/A-20190311132207009776