Response to Office Action

Under the Paperwork Reduction Act of 1995 no persons are required to respond to a collection of information unless it displays a valid OMB control number. PTO Form 1957 (Rev 10/2011)

OMB No. 0651-0050 (Exp 09/20/2020)

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Under the Paperwork Reduction Act of 1995 no persons are required to respond to a collection of information unless it displays a valid OMB control number. PTO Form 1957 (Rev 10/2011)

OMB No. 0651-0050 (Exp 09/20/2020)

Response to Office Action

To the Commissioner for Trademarks:

Application serial no. 88284885 WILD HARVEST(Standard Characters, see http://uspto.report/TM/88284885/mark.png) has been amended as follows:

ARGUMENT(S)
In response to the substantive refusal(s), please note the following:

Response Applicant has deleted seafood from its goods and therefore submits that Registration Nos. 2896651 and 3128439 no longer constitute a bar to registration. Applicant respectfully disagrees with the finding that its WILD HARVEST mark so resembles the mark in U.S. Registration Nos. 4704956, 5131938 and 5131939 as to be likely to cause confusion, mistake or to deceive. Applicant bases this finding upon, among other factors, the differences in the marks, the differences in the goods, the dilution of the cited marks, and the ability of similar marks (including the cited marks themselves) to coexist in the marketplace and Applicant?s registration of the mark for related goods. The likelihood of confusion determination must be made in light of the total effect of the product and package in the eye and mind of the ordinary purchaser. Vision Sports, Inc. v. Melville Corp., 888 F.2d 609, 616 (9th Cir. 1989). ?A variety of factors may be material in assessing the likelihood of confusion and no one of these factors by itself is dispositive of the likelihood of confusion question.? McGraw-Edison Co. v. Walt Disney Productions, 787 F.2d 1163, 1167 (7th Cir. 1986). The analysis of the likelihood of confusion involves consideration of several factors. The relevant factors in analyzing the likelihood of confusion are as follows: 1. The similarity or dissimilarity of the marks in their entireties as to appearance, sound, connotation and commercial impression. 2. The similarity or dissimilarity, and nature, of the goods or services as described in an application or registration or in connection with which a prior mark is in use. 3. The similarity or dissimilarity of established, likely to continue trade channels. 4. The conditions under which, and buyers to whom, sales are made, i.e., ?impulse? vs. careful, sophisticated purchasing. 5. The fame of the prior mark (sales, advertising, length of use). 6. The number and nature of similar marks in use on similar goods. 7. The nature and extent of any actual confusion. 8. The length of time during and conditions under which there has been concurrent use without evidence of actual confusion. 9. The variety of goods on which the mark is or is not used (house mark, ?family? mark, product mark). 10. The market interface between applicant and the owner of a prior mark. 11. The extent to which applicant has a right to exclude others from use of its mark on its goods. 12. The extent of potential confusion. 13. Any other established fact probative of the effect of use. In re E.I. DuPont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973). Applicant will analyze all of the factors listed above for which there is evidence. 1. The similarity of the marks in appearance and suggestion. Applicant's composite mark WILD HARVEST mark is different in appearance and suggestion to the cited marks. Composite marks must be considered in their entireties. See e.g, Massey Junior College, Inc. v. Fashion Institute of Technology, 492 F.2d 1399, 181 USPQ 272 (C.C.P.A. 1974). The comparison of composite marks must be done on a case-by-case basis without reliance on mechanical rules of construction. See e.g., Spice Islands, Inc. v. Frank T. & Spice Co., 505 F.2d 1293, 184 USPQ 35 (C.C.P.A. 1974) (SPICE TREE and tree design held not confusingly similar to SPICE ISLANDS and tree design, both for spices). The use of identical words, or even dominant words in common, does not automatically mean that the two marks are similar. See, e.g., Shen Manufacturing Co. v. Ritz Hotel Ltd., 393 F.3d 1238, 73 USPQ2d 1350 (Fed. Cir. 2004) (RITZ and THE RITZ KIDS create different commercial impressions); In re Farm Fresh Catfish Co., 231 USPQ 495 (TTAB 1986) (CATFISH BOBBERS (with "CATFISH" disclaimed) for fish held not likely to be confused with BOBBER for restaurant services); In re Shawnee Milling Co., 225 USPQ 747 (TTAB 1985) (GOLDEN CRUST for flour held not likely to be confused with ADOLPH'S GOLD'N CRUST and design (with "GOLD'N CRUST" disclaimed) for coating and seasoning for food items); In re S.D. Fabrics, Inc., 223 USPQ 54 (TTAB 1984) (DESIGNERS/FABRIC (stylized) for retail fabric store services held not likely to be confused with DAN RIVER DESIGNER FABRICS and design for textile fabrics). Rather, in analyzing the similarities of sight, sound and meaning between two marks, a court looks to the overall impression created by the marks and does not merely compare individual features. Applicant's trademark is for the wording WILD HARVEST while the cited marks, which coexist with each other, consist of WILD HARVESTED NATIVE NECTARS and OREGON?S WILD HARVEST and ? OREGON'S WILD HARVEST HERBAL SUPPLEMENTS SINCE 1994. The use of identical words, or even dominant words in common, does not automatically mean that the two marks are similar. Rather, in analyzing the similarities of sight, sound and meaning between two marks, a court looks to the overall impression created by the marks and does not merely compare individual features. The appearance of Applicant's WILD HARVEST trademark is significantly different than that used by the cited marks. Applicant's mark with the different wording from the cited mark and the marks are different enough to avoid consumer confusion. 2. The similarity of the goods or services. In order to find that a likelihood of confusion exists, the conditions surrounding the marketing of the goods at issue must be such that they would be encountered by the same consumers under circumstances that would give rise to the mistaken belief that they come from a common source. On-Line Careline Inc. v. America Online Inc., 229 F.3d 1080, 56 USPQ2d 1471 (Fed. Cir. 2000); In re Martin's Famous Pastry Shoppe, Inc., 748 F.2d 1565, 223 USPQ 1289 (Fed. Cir. 1984); In re Corning Glass Works, 229 USPQ 65 (TTAB 1985); In re Jeep Corp., 222 USPQ 333 (TTAB 1984). The goods in Applicant?s application are no more similar to the cited marks goods than Applicant?s earlier registrations for the mark WILD HARVEST as shown in the chart below (TARR Records also attached): Mark/Name Full Goods/Services App. No./Reg. No. WILD HARVEST (Int'l Class: 16) plastic garbage bags (Int'l Class: 21) Plates (Int'l Class: 29) cheese; coffee creamer; milk substitutes; olives, preserved; pickles; potato puffs; soups; canned beans; dried beans; hash brown potatoes; hot dogs; sliced meat (Int'l Class: 30) barbeque sauce; pickle relish; quinoa-based snack foods; salsa; confectionery chips for baking; frozen dough; pita chips RN: 5807549 SN: 87648889 WILD HARVEST (Int'l Class: 35) retail and online grocery store services RN: 5353790 SN: 87329786 WILD HARVEST (Int'l Class: 29) rice-based food beverage used as a milk substitute; soy milk, meat, beef, sausage, poultry and eggs (Int'l Class: 30) salsa, bread, crackers, cookies, maple syrup, honey (Int'l Class: 32) drinking water, fruit juice and lemonade RN: 3138351 SN: 78625480 WILD HARVEST (Int'l Class: 42) retail food store services RN: 2056158 SN: 74702903 WILD HARVEST (Int'l Class: 05) baby foods (Int'l Class: 29) canned tomatoes; applesauce; peanut butter; frozen vegetables; milk; yogurt; butter; soy milk; canned vegetables; edible oils; soups; frozen meals consisting primarily of meat, poultry and vegetables (Int'l Class: 30) teas; cocoa; salad dressings; tortilla chips; macaroni and cheese; tomato sauce; ketchup; pasta sauces; mustard; candy; oatmeal; seasonings; granola snacks; processed cereals; popcorn; breads; coffee; pizza; crackers; pasta; rice; sugar (Int'l Class: 31) fresh vegetables; unprocessed cereals RN: 3822419 SN: 77449116 WILD HARVEST and Design (Int'l Class: 05) baby foods (Int'l Class: 29) canned tomatoes; applesauce; peanut butter; frozen vegetables; milk; yogurt; butter; rice-based food beverage used as a milk substitute; soy milk; meats; eggs; canned vegetables; edible oils; soups; frozen meals consisting primarily of meat, poultry and vegetables (Int'l Class: 30) teas; cocoa; cappuccino mix; salad dressings; tortilla chips; macaroni and cheese; tomato sauce; ketchup; pasta sauces; mustard; candy; oatmeal; seasonings; granola snacks; processed cereals; popcorn; breads; coffee; pizza; salsa; crackers; cookies; maple syrup; honey; pasta; rice; sugar; non-alcoholic tea beverages with fruit flavor (Int'l Class: 31) fresh vegetables; unprocessed cereals (Int'l Class: 32) fruit juices; lemonades (Int'l Class: 35) retail and online grocery store services RN: 3815034 SN: 77449117 3. Strength of Cited Mark. Generally, the strength of a mark depends on two factors: (1) distinctiveness of the mark; and (2) the extent to which the mark is recognized by the relevant consuming class. Aveda Corp. v. Evita Marketing, Inc., 706 F.Supp. 1419, 1428 (D. Minn. 1989). The strength of the mark is typically shown by factors like: the degree and manner of the owner?s advertising; the length and manner of the owner?s use of the mark; and whether the owner?s use has been exclusive. Clamp Mfg. Co. v. Enco Mfg. Co, 870 F.2d 512, 517 (9th Cir. 1989). Here, the strength of the cited mark is not significant. Given the number of other users of the wording "WILD HARVEST" discussed in the section 4 below and as the two owners of cited marks are coexisting with each other, the strength of the cited marks is not a significant factor. 4. The Number And Nature Of Similar Marks On Similar Goods. In addition to the cited marks (which coexist with each other), there are numerous federal registrations or published applications for marks containing "WILD HARVEST", including applicant?s WILD HARVEST registrations discussed above. These listings demonstrate the lack of market penetration, the insignificant manner of the use of the cited marks and the ability of marks using these words to co-exist without confusion in the marketplace. The chart below contains marks which demonstrate the dilute nature of the cited marks. Mark/Name Full Goods/Services Owner Information App. No./Reg. No. WILD HARVEST (Int'l Class: 16) plastic garbage bags (Int'l Class: 21) Plates (Int'l Class: 29) cheese; coffee creamer; milk substitutes; olives, preserved; pickles; potato puffs; soups; canned beans; dried beans; hash brown potatoes; hot dogs; sliced meat (Int'l Class: 30) barbeque sauce; pickle relish; quinoa-based snack foods; salsa; confectionery chips for baking; frozen dough; pita chips Supervalu Licensing LLC (Delaware Limited Liability Company) 11840 Valley View Road Eden Prairie Minnesota 55344 RN: 5807549 SN: 87648889 WILD HARVEST (Int'l Class: 35) retail and online grocery store services Supervalu Licensing LLC (Delaware Limited Liability Company) 11840 Valley View Road Eden Prairie Minnesota 55344 RN: 5353790 SN: 87329786 WILD HARVEST (Int'l Class: 29) rice-based food beverage used as a milk substitute; soy milk, meat, beef, [ pork, ] sausage, poultry and eggs (Int'l Class: 30) salsa, bread, crackers, cookies, maple syrup, honey (Int'l Class: 32) drinking water, fruit juice and lemonade Supervalu Licensing LLC (Delaware Limited Liability Company) 11840 Valley View Road Eden Prairie Minnesota 55344 RN: 3138351 SN: 78625480 WILD HARVEST (Int'l Class: 42) retail food store services Supervalu Licensing LLC (Delaware Limited Liability Company) 11840 Valley View Road Eden Prairie Minnesota 55344 RN: 2056158 SN: 74702903 WILD HARVEST (Int'l Class: 05) baby foods (Int'l Class: 29) canned tomatoes; applesauce; peanut butter; frozen vegetables; milk; yogurt; butter; soy milk; canned vegetables; edible oils; soups; frozen meals consisting primarily of meat, poultry and vegetables (Int'l Class: 30) teas; cocoa; salad dressings; tortilla chips; macaroni and cheese; tomato sauce; ketchup; pasta sauces; mustard; candy; oatmeal; seasonings; granola snacks; processed cereals; popcorn; breads; coffee; pizza; crackers; pasta; rice; sugar (Int'l Class: 31) fresh vegetables; unprocessed cereals Supervalu Licensing LLC (Delaware Limited Liability Company) 11840 Valley View Road Eden Prairie Minnesota 55344 RN: 3822419 SN: 77449116 WILD HARVEST and Design (Int'l Class: 05) baby foods (Int'l Class: 29) canned tomatoes; applesauce; peanut butter; frozen vegetables; milk; yogurt; butter; rice-based food beverage used as a milk substitute; soy milk; meats; eggs; canned vegetables; edible oils; soups; frozen meals consisting primarily of meat, poultry and vegetables (Int'l Class: 30) teas; cocoa; cappuccino mix; salad dressings; tortilla chips; macaroni and cheese; tomato sauce; ketchup; pasta sauces; mustard; candy; oatmeal; seasonings; granola snacks; processed cereals; popcorn; breads; coffee; pizza; salsa; crackers; cookies; maple syrup; honey; pasta; rice; sugar; non-alcoholic tea beverages with fruit flavor (Int'l Class: 31) fresh vegetables; unprocessed cereals (Int'l Class: 32) fruit juices; lemonades (Int'l Class: 35) retail and online grocery store services Supervalu Licensing LLC (Delaware Limited Liability Company) 11840 Valley View Road Eden Prairie Minnesota 55344 RN: 3815034 SN: 77449117 OREGON'S WILD HARVEST (Int'l Class: 05) herbal supplements Oregon's Wild Harvest, Inc. (Oregon Corp.) 1601 Ne Hemlock Ave. Redmond Oregon 97756 RN: 5131938 SN: 86980342 OREGON'S WILD HARVEST HERBAL SUPPLEMENTS SINCE 1994 and Design (Int'l Class: 05) herbal supplements Oregon's Wild Harvest, Inc. (Oregon Corp.) 1601 Ne Hemlock Ave. Redmond Oregon 97756 RN: 5131939 SN: 86980350 WILD HARVESTED NATIVE NECTARS (Int'l Class: 03) body and beauty care cosmetics; cosmetic nourishing creams; cosmetics; cosmetics in the form of milks, lotions and emulsions; non-medicated preparations all for the care of skin, hair and scalp; soaps Yurrku LLC (Delaware Limited Liability Company) 300 Broad Street #406 Stamford Connecticut 06901 RN: 4704956 SN: 86148249 The above information demonstrates the lack of market penetration and the insignificant manner of the use of the cited mark. Review of the marketplace evidences the diluted status of the Registrant's wording in relation to food products, the ability of consumers to distinguish between similar marks, and the ability of multiple marks to co- exist without consumer confusion in the marketplace and on the Federal Register. This factor strongly supports the fact that there is no likelihood of confusion between the cited mark and Applicant's mark. 5. Actual Confusion. Applicant is unaware of any case of actual confusion by a consumer despite its registration and use of WILD HARVEST on other products and services. 6. Conclusion In light of all of the foregoing, Applicant respectfully requests that the United States Patent and Trademark Office reverse its prior 2(d) finding and allow Applicant?s application to proceed in the application process. The Office Action requested information regarding whether the seafood was wild caught. Applicant has deleted the seafood from its application, but does note that the seafood is wild caught. Applicant submits that since seafood has been deleted from its application, no disclaimer is necessary. By this Amendment and Response, Applicant has addressed the issues raised by the Examining Attorney and respectfully requests that the application be approved for publication at an early date. If the Examining Attorney has any questions or comments, Applicant respectfully requests that the Examining Attorney contact the undersigned Attorney for Applicant

EVIDENCE
Evidence in the nature of PDF of the response that includes formatting, PDF of evidence in the response has been attached.
Original PDF file:
evi_3814217352-20191015145510925646_._Wild_Harvest_Response.pdf
Converted PDF file(s) ( 11 pages)
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Original PDF file:
evi_3814217352-20191015145510925646_._Wild_Harvest_TSDR_Records2.PDF
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CLASSIFICATION AND LISTING OF GOODS/SERVICES

Applicant proposes to amend the following class of goods/services in the application:
Current: Class 003 for Cotton balls and rounds for cosmetic purposes, Body Wash, hair conditioner, shampoo, hand wash, body lotion, hand lotion, body scrub, bath bomb, body butter, bar soap, bath salt
Original Filing Basis:
Filing Basis: Section 1(b), Intent to Use: For a trademark or service mark application: As of the application filing date, the applicant had a bona fide intention, and was entitled, to use the mark in commerce on or in connection with the identified goods/services in the application. For a collective trademark, collective service mark, or collective membership mark application: As of the application filing date, the applicant had a bona fide intention, and was entitled, to exercise legitimate control over the use of the mark in commerce by members on or in connection with the identified goods/services/collective membership organization. For a certification mark application: As of the application filing date, the applicant had a bona fide intention, and was entitled, to exercise legitimate control over the use of the mark in commerce by authorized users in connection with the identified goods/services, and the applicant will not engage in the production or marketing of the goods/services to which the mark is applied, except to advertise or promote recognition of the certification program or of the goods/services that meet the certification standards of the applicant.

Proposed:
Tracked Text Description: Cotton balls and rounds for cosmetic purposes, Body Wash, hair conditioner, shampoo, hand wash, body lotion, hand lotion, body scrub, bath bomb, body butter, bar soap, bath salt; Cotton balls and rounds for cosmetic purposes, body wash, hair conditioner, shampoo, hand wash in the nature of nonmedicated liquid hand soap, body lotion, hand lotion, body scrub, bath bomb, body butter, bar soap, and non-medicated bath saltsClass 003 for Cotton balls and rounds for cosmetic purposes, body wash, hair conditioner, shampoo, hand wash in the nature of nonmedicated liquid hand soap, body lotion, hand lotion, body scrub, bath bomb, body butter, bar soap, and non-medicated bath salts
Filing Basis: Section 1(b), Intent to Use: For a trademark or service mark application: As of the application filing date, the applicant had a bona fide intention, and was entitled, to use the mark in commerce on or in connection with the identified goods/services in the application. For a collective trademark, collective service mark, or collective membership mark application: As of the application filing date, the applicant had a bona fide intention, and was entitled, to exercise legitimate control over the use of the mark in commerce by members on or in connection with the identified goods/services/collective membership organization. For a certification mark application: As of the application filing date, the applicant had a bona fide intention, and was entitled, to exercise legitimate control over the use of the mark in commerce by authorized users in connection with the identified goods/services, and the applicant will not engage in the production or marketing of the goods/services to which the mark is applied, except to advertise or promote recognition of the certification program or of the goods/services that meet the certification standards of the applicant.

Applicant proposes to amend the following class of goods/services in the application:
Current: Class 029 for Processed seafood, Frozen seafood, Seafood, not live, Turkey, ham, Roast beef, salami, Preserved peas; Hash brown potatoes
Original Filing Basis:
Filing Basis: Section 1(b), Intent to Use: For a trademark or service mark application: As of the application filing date, the applicant had a bona fide intention, and was entitled, to use the mark in commerce on or in connection with the identified goods/services in the application. For a collective trademark, collective service mark, or collective membership mark application: As of the application filing date, the applicant had a bona fide intention, and was entitled, to exercise legitimate control over the use of the mark in commerce by members on or in connection with the identified goods/services/collective membership organization. For a certification mark application: As of the application filing date, the applicant had a bona fide intention, and was entitled, to exercise legitimate control over the use of the mark in commerce by authorized users in connection with the identified goods/services, and the applicant will not engage in the production or marketing of the goods/services to which the mark is applied, except to advertise or promote recognition of the certification program or of the goods/services that meet the certification standards of the applicant.

Proposed:
Tracked Text Description: Processed seafood, Frozen seafood, Seafood, not live, Turkey, ham, Roast beef, salami, Preserved peas; Turkey, ham, Roast beef, salami, Preserved peas; Hash brown potatoesClass 029 for Turkey, ham, Roast beef, salami, Preserved peas; Hash brown potatoes
Filing Basis: Section 1(b), Intent to Use: For a trademark or service mark application: As of the application filing date, the applicant had a bona fide intention, and was entitled, to use the mark in commerce on or in connection with the identified goods/services in the application. For a collective trademark, collective service mark, or collective membership mark application: As of the application filing date, the applicant had a bona fide intention, and was entitled, to exercise legitimate control over the use of the mark in commerce by members on or in connection with the identified goods/services/collective membership organization. For a certification mark application: As of the application filing date, the applicant had a bona fide intention, and was entitled, to exercise legitimate control over the use of the mark in commerce by authorized users in connection with the identified goods/services, and the applicant will not engage in the production or marketing of the goods/services to which the mark is applied, except to advertise or promote recognition of the certification program or of the goods/services that meet the certification standards of the applicant.

The applicant's current attorney information: Gregory C. Golla. Gregory C. Golla of MERCHANT & GOULD P.C., is located at

      P.O. BOX 2910
      MINNEAPOLIS, Minnesota 55402-0910
      US
The docket/reference number is 8442.646US03.

The phone number is 612-332-5300.

The fax number is 612.332.9081.

The email address is dockmpls@merchantgould.com

The applicants proposed attorney information: Gregory C. Golla. Gregory C. Golla of MERCHANT & GOULD P.C., is a member of the XX bar, admitted to the bar in XXXX, bar membership no. XXX, is located at

      P.O. BOX 2910
      MINNEAPOLIS, Minnesota 55402-0910
      United States
The docket/reference number is 8442.646US03.

The phone number is 612-332-5300.

The fax number is 612.332.9081.

The email address is dockmpls@merchantgould.com

Gregory C. Golla submitted the following statement: The attorney of record is an active member in good standing of the bar of the highest court of a U.S. state, the District of Columbia, or any U.S. Commonwealth or territory.
The applicant's current correspondence information: GREGORY C. GOLLA. GREGORY C. GOLLA of MERCHANT & GOULD P.C., is located at

      P.O. BOX 2910
      MINNEAPOLIS, Minnesota 55402-0910
      US
The docket/reference number is 8442.646US03.

The phone number is 612-332-5300.

The fax number is 612.332.9081.

The email address is dockmpls@merchantgould.com

The applicants proposed correspondence information: Gregory C. Golla. Gregory C. Golla of MERCHANT & GOULD P.C., is located at

      P.O. BOX 2910
      MINNEAPOLIS, Minnesota 55402-0910
      United States
The docket/reference number is 8442.646US03.

The phone number is 612-332-5300.

The fax number is 612.332.9081.

The email address is dockmpls@merchantgould.com

SIGNATURE(S)
Response Signature
Signature: /gcg/     Date: 10/15/2019
Signatory's Name: Gregory Golla
Signatory's Position: Attorney

Signatory's Phone Number: 6123325300

The signatory has confirmed that he/she is a U.S.-licensed attorney who is an active member in good standing of the bar of the highest court of a U.S. state (including the District of Columbia and any U.S. Commonwealth or territory); and he/she is currently the owner's/holder's attorney or an associate thereof; and to the best of his/her knowledge, if prior to his/her appointment another U.S.-licensed attorney not currently associated with his/her company/firm previously represented the owner/holder in this matter: the owner/holder has revoked their power of attorney by a signed revocation or substitute power of attorney with the USPTO; the USPTO has granted that attorney's withdrawal request; the owner/holder has filed a power of attorney appointing him/her in this matter; or the owner's/holder's appointed U.S.-licensed attorney has filed a power of attorney appointing him/her as an associate attorney in this matter.

Mailing Address:    GREGORY C. GOLLA
   MERCHANT & GOULD P.C.
   
   P.O. BOX 2910
   MINNEAPOLIS, Minnesota 55402-0910
Mailing Address:    Gregory C. Golla
   MERCHANT & GOULD P.C.
   P.O. BOX 2910
   MINNEAPOLIS, Minnesota 55402-0910
        
Serial Number: 88284885
Internet Transmission Date: Tue Oct 15 15:03:55 EDT 2019
TEAS Stamp: USPTO/ROA-XX.XXX.XXX.XX-2019101515035511
6120-88284885-610fb3d17c6501f6e14bf6d295
05fab417c77c424c41ac4277ab739dd015274-N/
A-N/A-20191015145510925646