To: | Harmony Nutraceuticals LLC (Kunal@JainLawOffices.com) |
Subject: | U.S. TRADEMARK APPLICATION NO. 88247472 - WOMAN POWER - H001-011 |
Sent: | 3/6/2019 3:19:01 PM |
Sent As: | ECOM122@USPTO.GOV |
Attachments: | Attachment - 1 Attachment - 2 |
UNITED STATES PATENT AND TRADEMARK OFFICE (USPTO)
OFFICE ACTION (OFFICIAL LETTER) ABOUT APPLICANT’S TRADEMARK APPLICATION
U.S. APPLICATION SERIAL NO. 88247472
MARK: WOMAN POWER
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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: Harmony Nutraceuticals 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: 3/6/2019
The referenced application from Harmony Nutraceuticals LLC (“Applicant”) has been reviewed by the assigned trademark examining attorney. Applicant must respond timely and completely to the issue below. 15 U.S.C. §1062(b); 37 C.F.R. §§2.62(a), 2.65(a); TMEP §§711, 718.03.
SECTION 2(d) REFUSAL – LIKELIHOOD OF CONFUSION
Marks are compared in their entireties for similarities in appearance, sound, connotation, and commercial impression. Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 1321, 110 USPQ2d 1157, 1160 (Fed. Cir. 2014) (quoting Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 1371, 73 USPQ2d 1689, 1691 (Fed. Cir. 2005)); TMEP §1207.01(b)-(b)(v). “Similarity in any one of these elements may be sufficient to find the marks confusingly similar.” In re Inn at St. John’s, LLC, 126 USPQ2d 1742, 1746 (TTAB 2018) (citing In re Davia, 110 USPQ2d 1810, 1812 (TTAB 2014)); TMEP §1207.01(b).
In this case, the following factors are the most relevant: similarity of the marks, similarity and nature of the goods, and similarity of the trade channels of the goods. See In re Viterra Inc., 671 F.3d 1358, 1361-62, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012); In re Dakin’s Miniatures Inc., 59 USPQ2d 1593, 1595-96 (TTAB 1999); TMEP §§1207.01 et seq.
Similarity of the Marks
The Applied for Mark is WOMAN POWER and The Registered Mark is MANPOWER. The marks are similar in connotation and commercial impression.
When comparing marks, “[t]he proper test is not a side-by-side comparison of the marks, but instead whether the marks are sufficiently similar in terms of their commercial impression such that [consumers] who encounter the marks would be likely to assume a connection between the parties.” Cai v. Diamond Hong, Inc., __ F.3d __, 127 USPQ2d 1797, 1801 (Fed. Cir. 2018) (quoting Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 1368, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012)); TMEP §1207.01(b). The proper focus is on the recollection of the average purchaser, who retains a general rather than specific impression of trademarks. In re Inn at St. John’s, LLC, 126 USPQ2d 1742, 1746 (TTAB 2018) (citing In re St. Helena Hosp., 774 F.3d 747, 750-51, 113 USPQ2d 1082, 1085 (Fed. Cir. 2014); Geigy Chem. Corp. v. Atlas Chem. Indus., Inc., 438 F.2d 1005, 1007, 169 USPQ 39, 40 (CCPA 1971)); TMEP §1207.01(b).
Where the goods of an applicant and registrant are identical or virtually identical, as in this case, the degree of similarity between the marks required to support a finding that confusion is likely declines. See Cai v. Diamond Hong, Inc., __ F.3d __, 127 USPQ2d 1797, 1801 (Fed. Cir. 2018) (quoting In re Viterra Inc., 671 F.3d 1358, 1363, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012)); TMEP §1207.01(b).
For the foregoing reasons, The Applied for Mark is confusingly similar to The Registered Mark.
Similarity and Nature of the Goods and of the Trade Channels
Applicant’s goods are “Herbal supplements; Nutritional supplements” in Class 5.
Registrant’s goods are “Dietary and nutritional supplements; Dietary food supplements; Dietary supplements; Dietary supplements for human consumption; Food supplements; Health food supplements; Natural supplements for treating erectile dysfunction; Nutraceuticals for use as a dietary supplement; Nutritional supplements” in Class 5.
The goods and/or services of the parties need not be identical or even competitive to find a likelihood of confusion. See On-line Careline Inc. v. Am. Online Inc., 229 F.3d 1080, 1086, 56 USPQ2d 1471, 1475 (Fed. Cir. 2000); Recot, Inc. v. Becton, 214 F.3d 1322, 1329, 54 USPQ2d 1894, 1898 (Fed. Cir. 2000) (“[E]ven if the goods in question are different from, and thus not related to, one another in kind, the same goods can be related in the mind of the consuming public as to the origin of the goods.”); TMEP §1207.01(a)(i).
The respective goods and/or services need only be “related in some manner and/or if the circumstances surrounding their marketing [be] such that they could give rise to the mistaken belief that [the goods] emanate from the same source.” Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 1369, 101 USPQ2d 1713, 1722 (Fed. Cir. 2012) (quoting 7-Eleven Inc. v. Wechsler, 83 USPQ2d 1715, 1724 (TTAB 2007)); TMEP §1207.01(a)(i). Unrestricted and broad identifications are presumed to encompass all goods and/or services of the type described. See In re Jump Designs, LLC, 80 USPQ2d 1370, 1374 (TTAB 2006) (citing In re Elbaum, 211 USPQ 639, 640 (TTAB 1981)); In re Linkvest S.A., 24 USPQ2d 1716, 1716 (TTAB 1992).
Determining likelihood of confusion is based on the description of the goods and/or services stated in the application and registration at issue, not on evidence of actual use. See Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 1323, 110 USPQ2d 1157, 1162 (Fed. Cir. 2014) (quoting Octocom Sys. Inc. v. Hous. Computers Servs. Inc., 918 F.2d 937, 942, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990)). Applicant’s goods and Registrant’s goods both include nutritional supplements. This weighs heavily in favor of finding Applicant’s goods related to Registrant’s goods for likelihood of confusion purposes.
For the foregoing reasons, Applicant’s goods and Registrant’s goods are related for likelihood of confusion purposes.
With respect to trade channels, absent restrictions in an application and/or registration, the identified goods and/or services are “presumed to travel in the same channels of trade to the same class of purchasers.” In re Viterra Inc., 671 F.3d 1358, 1362, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012) (quoting Hewlett-Packard Co. v. Packard Press, Inc., 281 F.3d 1261, 1268, 62 USPQ2d 1001, 1005 (Fed. Cir. 2002)).
The identifications set forth in the application and registration have no restrictions as to nature, type, channels of trade, or classes of purchasers. Therefore, for purpose of a likelihood of confusion analysis, it is presumed that Applicant’s goods and Registrant’s goods travel in all normal channels of trade, and are available to the same class of purchasers.
Section 2(d) Analysis Conclusion
In total, The Applied for Mark, MAN POWER, is confusingly similar to The Registered Mark, WOMAN POWER; Applicant’s goods are highly related to Registrant’s goods; and Applicant’s goods travel in the same trade channels as Registrant’s goods. Consequently, consumers are likely to be confused by the marks and mistakenly believe that the goods that these marks identify originate from a common source. Therefore, registration of The Applied for Mark must be refused under Trademark Act Section 2(d) because of a likelihood of confusion with The Registered Mark.
RESPONSE GUIDELINES
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.
/Louis Kolodner/
Examining Attorney
Law Office 122
(571)272-7562
Louis.Kolodner@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.