Response to Office Action

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)

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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. 88175454 ALO (Stylized and/or with Design, see http://uspto.report/TM/88175454/mark.png) has been amended as follows:

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

Applicant submits that confusion is not likely with the marks shown in the cited applications, and accordingly requests that the potential refusals for confusion be withdrawn and the application be allowed to proceed to publication. The cited Serial No. 88148610 was issued an Office Action on January 22, 2019, and no response was filed by the July 22, 2019 deadline, as shown in the attached TSDR printout. The application is now abandoned, and no longer poses a potential bar to registration. Further, confusion is not likely with Serial No. 87131150, ALOE ENERGY PLUS. Applicant's mark consists of a trade dress in the form the packaging design of a bottle for Applicant's beverage goods. The trade dress consists of the wording "ALO" within the logo of a green square and the design of aloe vera leaves. The mark of the cited application is merely "ALOE ENERGY PLUS" in standard characters. Upon evaluation of the marks in their entities as to sight, sound, and meaning, there is simply no commonality. Applicant's mark does not incorporate any of the words included in the cited mark. At most, Applicant's mark features commonality in the "ALOE" element of the cited mark considering Applicant's mark features aloe leaves and a misspelling of "ALOE." However, commonality merely in the generic word "ALOE" for the parties'; goods cannot support a finding of confusion. There are eighty (80) live applications and registrations in class 32 where the mark includes the word "ALOE." The word is heavily diluted for aloe drinks in class 32. A registration in class 32 including "ALOE" cannot prevent registration of another mark in class 32 where the only commonality is "ALOE" because the commonality is not likely to be perceived consumers as source-identifying. See, e.g., TMEP section 1207.01(b) (iii); Citigroup Inc. v. Capital City Bank Group, Inc., 637 F.3d 1344, 1356, 98 USPQ2d 1253, 1261 (Fed. Cir. 2011) (no confusion likely where the matter common to the marks is not likely to be perceived by purchasers as distinguishing source because it is merely descriptive or diluted). "ALOE" is certainly not likely to be perceived as distinguishing source because it is the generic word for the subject goods. Accordingly, confusion is not likely. Applicant further submits that the mark image shows all elements of the mark as claimed, including specification of the matter not claimed as shown in broken lines. As such, a new drawing or description should not be required.

EVIDENCE
Evidence in the nature of Status of Cited Application has been attached.
Original PDF file:
evi_2312222738-20190806180050373950_._88148610.pdf
Converted PDF file(s) ( 2 pages)
Evidence-1
Evidence-2

The applicant's current attorney information: Otto O. Lee. Otto O. Lee of INTELLECTUAL PROPERTY LAW GROUP LLP, is located at

      1871 THE ALAMEDA, SUITE 250
      SAN JOSE, California 95126
      US
The docket/reference number is 4974.

The phone number is 408-286-8933.

The fax number is 408-286-8932.

The email address is tm_docket@iplg.com

The applicants proposed attorney information: Otto O. Lee. Other appointed attorneys are Juneko Jackson, Kevin Viau, Leila Sockolov, Jenny Hong-Gonzalez. Otto O. Lee of INTELLECTUAL PROPERTY LAW GROUP LLP, is a member of the XX bar, admitted to the bar in XXXX, bar membership no. XXX, and the attorney(s) is located at

      1871 THE ALAMEDA, SUITE 250
      SAN JOSE, California 95126
      United States
The docket/reference number is 4974.

The phone number is 408-286-8933.

The fax number is 408-286-8932.

The email address is tm_docket@iplg.com

Otto O. Lee submitted the following statement: I attest that I am an attorney who is an active member in good standing of the bar of the highest court of a U.S. state (including the District of Columbia and any U.S. Commonwealth or territory).
The applicant's current correspondence information: OTTO O. LEE. OTTO O. LEE of INTELLECTUAL PROPERTY LAW GROUP LLP, is located at

      1871 THE ALAMEDA, SUITE 250
      SAN JOSE, California 95126
      US
The docket/reference number is 4974.

The phone number is 408-286-8933.

The fax number is 408-286-8932.

The email address is tm_docket@iplg.com

The applicants proposed correspondence information: Otto O. Lee. Otto O. Lee of INTELLECTUAL PROPERTY LAW GROUP LLP, is located at

      1871 THE ALAMEDA, SUITE 250
      SAN JOSE, California 95126
      United States
The docket/reference number is 4974.

The phone number is 408-286-8933.

The fax number is 408-286-8932.

The email address is tm_docket@iplg.com

ADDITIONAL STATEMENTS
Disclaimer
No claim is made to the exclusive right to use "aloe" apart from the mark as shown.


SIGNATURE(S)
Response Signature
Signature: /Otto O. Lee/     Date: 08/06/2019
Signatory's Name: Otto O. Lee
Signatory's Position: Attorney of Record, California Bar Member

The signatory has confirmed that he/she is a U.S.-licensed attorney who is an active member in good standing of the bar of the highest court of a U.S. state (including the District of Columbia and any U.S. Commonwealth or territory); 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.-licensed attorney not currently associated with his/her company/firm previously represented the owner/holder in this matter: the owner/holder has revoked their power of attorney by a signed revocation or substitute power of attorney with the USPTO; the USPTO has granted that attorney's withdrawal request; the owner/holder has filed a power of attorney appointing him/her in this matter; or the owner's/holder's appointed U.S.-licensed attorney has filed a power of attorney appointing him/her as an associate attorney in this matter.

Mailing Address:    OTTO O. LEE
   INTELLECTUAL PROPERTY LAW GROUP LLP
   
   1871 THE ALAMEDA, SUITE 250
   SAN JOSE, California 95126
Mailing Address:    Otto O. Lee
   INTELLECTUAL PROPERTY LAW GROUP LLP
   1871 THE ALAMEDA, SUITE 250
   SAN JOSE, California 95126
        
Serial Number: 88175454
Internet Transmission Date: Tue Aug 06 18:10:06 EDT 2019
TEAS Stamp: USPTO/ROA-XX.XXX.XXX.XX-2019080618100617
5603-88175454-610edd7ed96b2bcf0fcaa379da
93b6e1fc9b51b4d4183a28e57315772b1e3930ef
-N/A-N/A-20190806180050373950