To: | 4 Pillar Dynasty LLC (tm@ostrolenk.com) |
Subject: | U.S. Trademark Application Serial No. 88253673 - POLARFLEX - TE/4996-107 |
Sent: | January 29, 2020 10:09:03 PM |
Sent As: | ecom123@uspto.gov |
Attachments: |
United States Patent and Trademark Office (USPTO)
Office Action (Official Letter) About Applicant’s Trademark Application
U.S. Application Serial No. 88253673
Mark: POLARFLEX
|
|
Correspondence Address: |
|
Applicant: 4 Pillar Dynasty LLC
|
|
Reference/Docket No. TE/4996-107
Correspondence Email Address: |
|
NONFINAL OFFICE ACTION
The USPTO must receive applicant’s response to this letter within six months of the issue date below or the application will be abandoned. Respond using the Trademark Electronic Application System (TEAS). A link to the appropriate TEAS response form appears at the end of this Office action.
Issue date: January 29, 2020
SECTIONS 1 AND 45 REFUSAL – SPECIMEN DOES NOT SHOW USE IN COMMERCE
Registration is refused because the specimen does not show the mark in the drawing in use in commerce in International Class 25, which is required in the statement of use. Trademark Act Sections 1 and 45, 15 U.S.C. §§1051, 1127; 37 C.F.R. §§2.34(a)(1)(iv), 2.56(a); TMEP §§904, 904.07(a), 1301.04(g)(i).
The mark appearing on the specimen and in the drawing must match; that is, the mark in the drawing “must be a substantially exact representation of the mark” on the specimen. See 37 C.F.R. §2.51(b); TMEP §807.12(a). However, in this case, the specimen displays the mark as POLAR FLEX (with a space and so consisting of two, separate words). However, the drawing displays the mark as POLARFLEX (with no space and the same two terms combined into one word). The mark on the specimen does not match the mark in the drawing because of these differences between the mark drawing and the mark as it displayed on the specimen. Applicant has thus failed to provide the required evidence of use of the mark in commerce. See TMEP §807.12(a).
Applicant should please also note that a tag not visibly affixed to the identified goods, and indeed without any goods being visible, at all, would not have demonstrated use of the mark in commerce for “Ladies clothing, namely, bottoms, tops, athletic tops, athletic bottoms, sweaters, jeans, blouses, skirts, dresses, jackets, vests, coats, rainwear, lingerie, sleepwear, loungewear, swimwear, gloves, socks, hosiery, and scarves” in Class 25—even if the mark in the drawing had been a substantially exact representation of the mark on the specimen. Among other things, without any of the identified goods being visible (and with only a tag pictured in a hand), it is impossible to ascertain if the pictured tag is being used with any of the identified goods. Examples of specimens for goods include tags, labels, instruction manuals, containers, photographs that show the mark on the actual goods or packaging, and displays associated with the actual goods at their point of sale. See TMEP §§904.03 et seq. Webpages may also be specimens for goods when they include a picture or textual description of the goods associated with the mark and the means to order the goods. TMEP §904.03(i).
Applicant may respond to this refusal by satisfying the following:
Applicant, however, may not respond by withdrawing the statement of use. See 37 C.F.R. §2.88(f); TMEP §1109.17.
For more information about drawings and instructions on how to satisfy these response options online using the Trademark Electronic Application System (TEAS) form, see the Drawing 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.
How to respond. Click to file a response to this nonfinal Office action.
/Victor Cerda/
Examining Attorney
Trademark Law Office 123
(571) 270-1280
Victor.Cerda@uspto.gov
ADDITIONAL RESPONSE GUIDANCE