UNITED STATES PATENT AND TRADEMARK OFFICE (USPTO)
OFFICE ACTION (OFFICIAL LETTER) ABOUT APPLICANT’S TRADEMARK APPLICATION
U.S. APPLICATION SERIAL NO. 88201682
MARK: #45 BLEND
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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: Vallorani Vineyards, 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: 3/1/2019
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.
SUMMARY OF ISSUES
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(a) FALSE CONNECTION
Registration is refused because the applied-for mark consists of or includes matter which may falsely suggest a connection with Donald Trump. Trademark Act Section 2(a), 15 U.S.C. §1052(a). Although Donald Trump is not connected with the goods provided by applicant under the applied-for mark, specify person is so well-known that consumers would presume a connection. See id.
(1) The mark sought to be registered is the same as, or a close approximation of, the name or identity previously used by another person or institution.
(2) The mark would be recognized as such, in that it points uniquely and unmistakably to that person or institution.
(3) The person or institution identified in the mark is not connected with the goods sold or services performed by applicant under the mark.
(4) The fame or reputation of the named person or institution is of such a nature that a connection with such person or institution would be presumed when applicant’s mark is used on its goods and/or services.
In re Pedersen, 109 USPQ2d at 1188-89; In re Jackson Int’l Trading Co., 103 USPQ2d 1417, 1419 (TTAB 2012); TMEP §1203.03(c)(i); see also Univ. of Notre Dame du Lac v. J.C. Gourmet Food Imps. Co., 703 F.2d 1372, 1375-77, 217 USPQ 505, 508-10 (Fed. Cir. 1983) (providing foundational principles for the current four-part test used to determine the existence of a false connection).
Here the term “#45” would be seen as a reference to Donald Trump. Please see attached an excerpt from Applicant’s website (http://thrashercoffee.com/collections/coffee/products/45-blend-coffee) showing “#45” as a reference to Donald Trump. Based on the specimen submitted and the website excerpt, the mark unmistakably points to Donald Trump. As Donald Trump is the President of the United States and is a famous public figure, consumers are likely to make a connection between Donald Trump and the goods.
Applicant should note the following additional ground for refusal.
SECTION 2(c) REFUSAL – NAME IDENTIFYING A PARTICULAR LIVING INDIVIDUAL
In this case, Donald John Trump is an American businessman, television personality, politician, and the 45th President of the United States. Elected on November 8, 2016, Trump won the general election on November 8, 2016 and assumed office on January 20, 2017. He is the chairman and president of The Trump Organization, and the founder of Trump Entertainment Resorts. On June 16, 2015, Trump formally announced his candidacy for president of the United States in the 2016 election, seeking the nomination of the Republican Party. For these reasons, he is the subject of frequent media attention and his name is often in the public view. Please see the attached sampling of items retrieved via an Internet search.
The term “#45” in the applied-for mark clearly references Donald Trump. The fact that a mark also contains other matter, in addition to a name, portrait, or signature, does not alter the requirement for written consent to register from the identified individual. See Reed v. Bakers Eng’g & Equip. Co., 100 USPQ 196, 199 (PTO 1954). Please see an excerpt from applicant’s website (http://thrashercoffee.com/collections/coffee/products/45-blend-coffee) stating the following:
Tired of Liberal Starbucks? All other coffees are FIRED! Finally, a bold American blend in honor of our 45th President, Donald J. Trump.
#45 Blend is intentionally mixed and roasted to be bold, just like our 45th President. It begins with a refreshing balance of the best beans from Central America and Africa, and ends with a flavor only roasting in America can provide.
The specific flavors of this blend will vary from season to season, as all good coffees do, with coffee farming and cultivation ever changing throughout the year. But the essence of American craftsmanship will always ring true in this blended roast.
The idea of the #45 Blend was somewhat daunting. We wanted a coffee dedicated to American ideals. We wanted a drink worthy of our current President as well as our Founding Fathers; a drink we’d gladly brew in the great American tradition of consuming coffee—going all the way back to the Boston Tea Party.
Please also see the following third party website evidence showing the number 45 and “#45” used to reference Donald Trump:
The attached evidence show the number 45 and term “#45” used to reference Donald Trump. For all of the foregoing reasons, the use of the term “#45” in the proposed mark would be construed by the public as a reference to Donald Trump. Accordingly, because President Trump’s written consent is not of record, registration must be refused pursuant to Section 2(c) of the Trademark Act.
The refusal under Section 2(c) will be withdrawn if applicant provides both of the following:
(1) A statement that the name shown in the mark identifies Donald Trump, a living individual whose consent is of record.
(2) A written consent, personally signed by the individual whose name, signature, or portrait appears in the mark, authorizing applicant to register the identifying matter as a trademark and/or service mark with the USPTO; for example, an applicant may use, if applicable, the following: “I, Donald Trump, consent to the use and registration of my name as a trademark and/or service mark with the USPTO.”
See TMEP §§813, 813.01(a), 1206.04(a).
Applicant is advised that the written consent must include a statement of the party’s consent to applicant’s registration, and not just the use, of the identifying matter as a trademark. See Krause v. Krause Publ’ns, Inc., 76 USPQ2d 1904, 1912-13 (TTAB 2005); In re New John Nissen Mannequins, 227 USPQ 569, 571 (TTAB 1985); TMEP §1206.04(a).
INFORMALITIES
DISCLAIMER REQUIREMENT
In this case, applicant must disclaim the wording “BLEND” because it is not inherently distinctive. These unregistrable term(s) at best are merely descriptive of an ingredient, quality, characteristic, function, feature, purpose, or use of applicant’s goods and/or services. See 15 U.S.C. §1052(e)(1); DuoProSS Meditech Corp. v. Inviro Med. Devices, Ltd., 695 F.3d 1247, 1251, 103 USPQ2d 1753, 1755 (Fed. Cir. 2012); TMEP §§1213, 1213.03(a).
The attached evidence from an online dictionary shows this wording means “to mix different foods or other substances together.” Thus, the wording merely describes applicant’s goods as they are coffee blends.
Applicant may respond to this issue by submitting a disclaimer in the following format:
No claim is made to the exclusive right to use “BLEND” apart from the mark as shown.
For an overview of disclaimers and instructions on how to satisfy this issue using the Trademark Electronic Application System (TEAS), see the Disclaimer webpage.
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.
/Kapil K. Bhanot/
Examining Attorney
Law Office 108
571.270.1516
kapil.bhanot@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.