To: | Kranz, Carissa (dhochman@wrslawyers.com) |
Subject: | U.S. TRADEMARK APPLICATION NO. 88215077 - VEGAN V BEVVEG - 21907-002 |
Sent: | 3/6/2019 11:30:23 AM |
Sent As: | ECOM103@USPTO.GOV |
Attachments: |
UNITED STATES PATENT AND TRADEMARK OFFICE (USPTO)
OFFICE ACTION (OFFICIAL LETTER) ABOUT APPLICANT’S TRADEMARK APPLICATION
U.S. APPLICATION SERIAL NO. 88215077
MARK: VEGAN V BEVVEG
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CORRESPONDENT ADDRESS: WOLF, RIFKIN, SHAPIRO, SCHULMAN & RABKIN |
CLICK HERE TO RESPOND TO THIS LETTER: http://www.gov.uspto.report/trademarks/teas/response_forms.jsp
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APPLICANT: Kranz, Carissa
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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: 3/6/2019
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).
AMENDED DESCRIPTION OF MARK AND COLOR CLAIM CLARIFICATION REQUIRED
Applicant must also clarify whether color is a feature of the mark because, although the drawing shows the mark in color, the application does not state whether color is a feature of the mark. 37 C.F.R. §§2.37, 2.52(b)(1), 2.61(b); see TMEP §807.07(a)-(a)(ii).
Applicant may respond to this requirement by satisfying one of the following:
(1) If color is not a feature of the mark, applicant must submit a black-and-white drawing of the mark to replace the color drawing. See TMEP §807.07(a)(i). However, any other amendments to the drawing will not be accepted if they materially alter the mark. 37 C.F.R. §2.72; see TMEP §§807.14 et seq. Applicant must also submit a revised description of all literal and design elements in the mark, deleting any reference to color, if appropriate. 37 C.F.R. §2.37; see TMEP §§808.01, 808.02. The following description is suggested, if accurate: The mark consists of an incomplete single line circle with the wording “VEGAN” at the top of the circle and the letter “V” appearing within an upside-down triangle under “VEGAN” in the center of the circle. The wording “BEVVEG!” connects the curved lines of the circle to form the bottom of the circle.
(2) If color is a feature of the mark, applicant must submit a statement (a) listing all the colors that are claimed as a feature of the mark and (b) describing all the literal and design elements in the mark that specifies where each color appears in those elements. 37 C.F.R. §§2.37, 2.52(b)(1); TMEP §807.07(a)-(a)(ii). Generic color names must be used to describe the colors in the mark, e.g., red, yellow, blue. TMEP §807.07(a)(i)-(ii). If black, white, and/or gray represent background, outlining, shading, and/or transparent areas and are not part of the mark, applicant must so specify in the description. See TMEP §807.07(d). The following color claim and description are suggested, if accurate:
Color claim: “The color green is claimed as a feature of the mark.”
Description: “The mark consists of the following: a green, incomplete, single line circle with the green wording “VEGAN” at the top of the circle and the transparent letter “V” appearing within an upside-down green triangle under “VEGAN” in the center of the circle. The green wording “BEVVEG!” connects the curved lines of the circle to form the bottom of the circle. The white in the mark represents background and is not claimed as a feature of the mark.”
See TMEP §807.07(b).
MARK IMAGE UNCLEAR
Therefore, applicant must submit a new drawing showing a clear depiction of the mark. All lines must be clean, sharp and solid, and not fine or crowded. 37 C.F.R. §§2.53(c), 2.54(e); TMEP §§807.05(c), 807.06(a). Additionally, the USPTO will not accept a new drawing in which there are amendments or changes that would materially alter the applied-for mark. 37 C.F.R. §2.72; see TMEP §§807.13 et seq., 807.14 et seq.
For more information about drawings and instructions on how to submit a drawing, see the Drawing webpage.
The wording “TESTING, ANALYSIS AND EVALUATION OF THE 3322245.1 2 SERVICES OF OTHERS TO DETERMINE CONFORMITY WITH CERTIFICATION STANDARDS, NAMELY, THAT THE SERVICE IS VEGAN, AND THEREFORE, DOES NOT CONTAIN ANIMAL PRODUCTS OR ANIMAL BY PRODUCTS AND WAS NOT TESTED ON ANIMALS” in the identification of services is indefinite and must be clarified because it does not make clear what the services are. See 37 C.F.R. §2.32(a)(6); TMEP §1402.01. Specifically, it is unclear whether the numbers “3322245.1 2” refer to a specific type of service that is being tested, analyzed, and evaluated by applicant. Generally, a trademark examining attorney will recommend acceptable substitute wording for unacceptable identifications of goods and/or services. In this case, however, because the nature of the services is unclear from the application record, the trademark examining attorney is unable to suggest any alternative wording. See TMEP §1402.01(e). If the numbers “3322245.1 2” were included in error, applicant may delete the numbers from the identification of services.
For assistance with identifying and classifying goods and services in trademark applications, please see the USPTO’s online searchable U.S. Acceptable Identification of Goods and Services Manual. See TMEP §1402.04.
In this case, applicant must disclaim the wording “VEGAN” because it is not inherently distinctive. This unregistrable term at best is 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).
This wording appears in applicant’s identification of services. Thus, the wording merely describes applicant’s goods and/or services because it describes a feature of applicant’s services. Specifically, that applicant’s testing, analysis, and evaluation services determine whether the goods and/or services of others are vegan.
Applicant may respond to this issue by submitting a disclaimer in the following format:
No claim is made to the exclusive right to use “VEGAN” 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.
Please call or email the assigned trademark examining attorney 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.
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.
/Chioma (Bata) Oputa/
Examining Attorney
Law Office 103
(571) 272-5234
chioma.oputa@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.