To: | Nutrient Foods, LLC (dave@dingmaniplaw.com) |
Subject: | U.S. TRADEMARK APPLICATION NO. 88202108 - NUTRIENT FLAVOR PACK - 24278-00120 |
Sent: | 2/27/2019 9:04:42 AM |
Sent As: | ECOM118@USPTO.GOV |
Attachments: | Attachment - 1 Attachment - 2 Attachment - 3 Attachment - 4 Attachment - 5 Attachment - 6 Attachment - 7 Attachment - 8 Attachment - 9 Attachment - 10 Attachment - 11 Attachment - 12 Attachment - 13 Attachment - 14 Attachment - 15 Attachment - 16 Attachment - 17 Attachment - 18 Attachment - 19 Attachment - 20 Attachment - 21 Attachment - 22 Attachment - 23 Attachment - 24 Attachment - 25 Attachment - 26 Attachment - 27 Attachment - 28 Attachment - 29 Attachment - 30 Attachment - 31 Attachment - 32 Attachment - 33 Attachment - 34 Attachment - 35 Attachment - 36 Attachment - 37 |
UNITED STATES PATENT AND TRADEMARK OFFICE (USPTO)
OFFICE ACTION (OFFICIAL LETTER) ABOUT APPLICANT’S TRADEMARK APPLICATION
U.S. APPLICATION SERIAL NO. 88202108
MARK: NUTRIENT FLAVOR PACK
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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: Nutrient Foods, 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: 2/27/2019
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(e)(1) REFUSAL - MERELY DESCRIPTIVE
In this case, applicant has applied for the mark NUTRIENT FLAVOR PACK in connection with “Nutrient dense shakes” and “Nutrient dense foods, namely, processed cereals, breakfast cereals, ready-to-eat cereals, oatmeal, cereal bars, and grain-based food bars, packaged meal kits consisting primarily of pasta and rice, coffee”. As the dictionary definitions attached indicate, NUTRIENT means “furnishing nourishment” while FLAVOR means “a substance that flavors” and “the blend of taste and smell sensations evoked by a substance in the mouth” and PACK means “a concentrated or compacted mass”. As such, the mark merely describes applicant’s goods as nutrient dense foods which feature or come in a flavor pack. The word NUTRIENT appears in applicant’s identification of goods and thus is clearly descriptive. As the Internet evidence attached confirms, FLAVOR PACK is used in a descriptive manner by third parties offering the same type of goods as applicant, namely, foods with or being flavor packs:
http://ultra-shake.com/products/4-flavor-pack
4 Flavor Pack
http://www.amazon.com/Proti-Kind-Vanilla-Smoothie-Flavor/dp/B01L0N86X8
Proti Kind Vanilla Bean Smoothie Flavor Pack
http://truenutrition.com/p-7110-trueflavor-flavor-packs-100-grams.aspx
TrueFlavor Chocolate Fudge Brownie Flavor Pack
http://alevostore.com/products/blueberry-delight-smoothie-flavor-pack-7-packets
Blueberry Delight Smoothie Flavor Pack
http://narrowpathsales.com/product/organic-single-grain-cereal-4-flavor-pack/
Organic Single Grain Cereal 5 Flavor Pack
Instant Oatmeal Variety Flavor Pack
Applicant’s website attached also confirms that the wording in the mark merely describes a feature or characteristic of the goods in that applicant’s goods are nutrient-dense packed foods and users can choose from among several flavors: “We packaged the items separately to allow you to cook the rice as long as you would like for desired texture before adding the flavoring and nutrients.”
Third-party registrations featuring goods the same as or similar to applicant’s services are probative evidence on the issue of descriptiveness where the relevant word or term is disclaimed, registered under Trademark Act Section 2(f) based on acquired distinctiveness, or registered on the Supplemental Register. E.g., In re Morinaga Nyugyo Kabushiki Kaisha, 120 USPQ2d 1738, 1745 (TTAB 2016) (quoting Inst. Nat’l des Appellations D’Origine v. Vintners Int’l Co., 958 F.2d 1574, 1581-82, 22 USPQ2d 1190, 1196 (Fed. Cir. 1992)); In re Box Solutions Corp., 79 USPQ2d 1953, 1955 (TTAB 2006). See registrations (including applicant’s own registrations) attached in which the same wording was found to be descriptive when used in connection with related goods:
CONCLUSION
Because the mark NUTRIENT FLAVOR PACK immediately describes a feature of applicant’s goods, namely, that goods are nutrient dense foods which feature or come in a flavor pack, registration is refused under Section 2(e)(1).
SUPPLEMENTAL REGISTER ADVISORY
If applicant files an acceptable allegation of use and also amends to the Supplemental Register, the application effective filing date will be the date applicant met the minimum filing requirements under 37 C.F.R. §2.76(c) for an amendment to allege use. TMEP §§816.02, 1102.03; see 37 C.F.R. §2.75(b). In addition, the undersigned trademark examining attorney will conduct a new search of the USPTO records for conflicting marks based on the later application filing date. TMEP §§206.01, 1102.03.
CLASSIFICATION OF GOODS
The goods “Nutrient dense shakes” are classified incorrectly. Applicant must amend the application to classify the goods in International Class 029. See 37 C.F.R. §§2.32(a)(7), 2.85; TMEP §§1401.02(a), 1401.03(b).
DESCRIPTION ADVISORY: Identifications of goods are examined in accordance with the Trademark Rules of Practice and the USPTO’s policies and procedures in effect on the date an application is filed (although an applicant may voluntarily choose to follow policies and procedures adopted after the application was filed). See 37 C.F.R. §2.85(e)(1)-(e)(2); TMEP §§1401.09, 1402.14. For guidance on drafting acceptable identifications of goods, use the USPTO’s online U.S. Acceptable Identification of Goods and Services Manual (ID Manual), which is continually updated in accordance with prevailing rules and policies. See TMEP §1402.04.
Please contact the assigned trademark examining attorney at Tasneem.hussain@uspto.gov with questions about this Office action. Although the trademark examining attorney cannot provide legal advice or statements about applicant’s rights, the trademark examining attorney can provide applicant with additional explanation about the refusal(s) and/or requirement(s) in this Office action. See TMEP §§705.02, 709.06. Although the USPTO does not accept emails as responses to Office actions, emails can be used for informal communications and will be included in the application record. See 37 C.F.R. §§2.62(c), 2.191; TMEP §§304.01-.02, 709.04-.05.
To expedite prosecution of the application, applicant is encouraged to file its response to this Office action online via the Trademark Electronic Application System (TEAS), which is available at http://www.gov.uspto.report/trademarks/teas/index.jsp. If applicant has technical questions about the TEAS response to Office action form, applicant can review the electronic filing tips available online at http://www.gov.uspto.report/trademarks/teas/e_filing_tips.jsp and e-mail technical questions to TEAS@uspto.gov.
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.
/Ms. Tasneem Hussain/
Trademark Examining Attorney
Law Office 118
tasneem.hussain@uspto.gov (preferred)
571.272.8273
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.