| 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) |
| Input Field |
Entered |
|---|---|
| SERIAL NUMBER | 88340573 |
| LAW OFFICE ASSIGNED | LAW OFFICE 111 |
| MARK SECTION | |
| MARK FILE NAME | http://uspto.report/TM/88340573/mark.png |
| LITERAL ELEMENT | BIG BAG FLY TRAP |
| STANDARD CHARACTERS | NO |
| USPTO-GENERATED IMAGE | NO |
| COLOR(S) CLAIMED (If applicable) |
The color(s) black, brown, yellow, gray, white, and green and light green is/are claimed as a feature of the mark. |
| DESCRIPTION OF THE MARK (and Color Location, if applicable) |
The mark consists of a design applied to the front and back of the goods as packaging. The design on the bottom is applied to the front of the goods; the lower half of the front design consists of a narrow horizontally oriented green rectangle; above this rectangle is larger horizontally oriented light green rectangle inside and near the top edge of the light green rectangle there is an outline in white of a smaller rectangle with a curved outer edge extending outward from the right edge of the light green rectangle; superimposed upon this smaller rectangle is a stylized design of a fly in black white and gray; above the light green rectangle is a narrow green horizontally oriented rectangle with a horizontal light green line going across the top; above the line is a horizontally oriented rectangle divided with an irregular arch; the lower portion is brown with gray irregular vertical lines to simulate a wood pattern; the upper portion is dark green; Superimposed on the front design in large letters are the words "BIG BAG' in yellow letters on outlined in brown and black at the bottom superimposed on the "AG" in smaller type are the words "FLY TRAP" is white outlined in black; the remaining front of the design consists of a cross hatch design composed of black lines and the white coloring in this design represents transparency; super imposed on the cross hatch design are six black fly designs where the white coloring in this design represents transparency; at the top of the front design a half circle design that is superimposed on the cross hatch design consisting of a black dotted line with two black scissor designs along the edge of the half circle; the circle is divided by a dotted line that extends horizontally across the entire design. The line is not a part of the mark and only indicates a division between the front and back of the design with top half of the design oriented upside down; the design on the top above the dotted line is applied to the back of the goods and consists of a vertically oriented rectangle where the bottom half of the rectangle consists of a cross hatch design composed of black lines and the white coloring in this design represents transparency; super imposed on the cross hatch design are six black fly designs where the white coloring in this design represents transparency; at the bottom of the vertically oriented rectangle is a half circle design that is superimposed on the cross hatch design consisting of a black dotted line with two black scissor designs along the edge of the half circle; superimposed on the bottom edge of the cross hatch design is a yellow horizontal rectangle with; the top half of the vertically oriented rectangle on the top is a black horizontal rectangle set above a white horizontal rectangle; super imposed on the black horizontal rectangle are three white square designs squares starting from the left edge; the first square is bisected diagonally forming two white triangle designs followed by a second white square and a third white square bisected diagonally to form two white triangles; the remainder of the rectangle is black; the white triangles and square contain drawings; the first triangle shows a black and white design of a hand holding the trap; the second triangle a black and white drawing of an arrow indicating direction for extending part of the trap up and outward; the middle square shows a black and white drawing of a teapot pouring a liquid into the trap; the next triangle shows a black and white drawing of hand holding the trap while a second had affixed the trap to branch; the last triangle shows a black and white drawing of hands disposing of the trap in the garbage; above these drawings is a horizontally oriented rectangle with the top and side edges in dotted lines to show the positioning of the design on the packaging are not claimed as part of the mark. |
| ARGUMENT(S) | |
|
In the Office Action dated May 16, 2019, Applicant responds by (1) confirming the mark is two-dimensional and amending the description of the mark, (2) providing additional specimens of the mark and (2) entering a disclaimer.
The Mark is Two-Dimensional The mark applied for is a two-dimensional design of a product label shown flat that will be used as product packaging. The mark description has been amended accordingly as follows. The mark consists of two-dimensional packaging. The design on the bottom is applied to the front of the goods; the lower half of the front design consists of a narrow horizontally oriented green rectangle; above this rectangle is larger horizontally oriented light green rectangle inside and near the top edge of the light green rectangle there is an outline in white of a smaller rectangle with a curved outer edge extending outward from the right edge of the light green rectangle; superimposed upon this smaller rectangle is a stylized design of a fly in black white and gray; above the light green rectangle is a narrow green horizontally oriented rectangle with a horizontal light green line going across the top; above the line is a horizontally oriented rectangle divided with an irregular arch; the lower portion is brown with gray irregular vertical lines to simulate a wood pattern; the upper portion is dark green; Superimposed on the front design in large letters are the words "BIG BAG' in yellow letters on outlined in brown and black at the bottom superimposed on the "AG" in smaller type are the words "FLY TRAP" is white outlined in black; the remaining front of the design consists of a cross hatch design composed of black lines and the white coloring in this design represents transparency; super imposed on the cross hatch design are six black fly designs where the white coloring in this design represents transparency; at the top of the front design a half circle design that is superimposed on the cross hatch design consisting of a black dotted line with two black scissor designs along the edge of the half circle; the circle is divided by a dotted line that extends horizontally across the entire design. The line is not a part of the mark and only indicates a division between the front and back of the design with top half of the design oriented upside down; the design on the top above the dotted line is applied to the back of the goods and consists of a vertically oriented rectangle where the bottom half of the rectangle consists of a cross hatch design composed of black lines and the white coloring in this design represents transparency; super imposed on the cross hatch design are six black fly designs where the white coloring in this design represents transparency; at the bottom of the vertically oriented rectangle is a half circle design that is superimposed on the cross hatch design consisting of a black dotted line with two black scissor designs along the edge of the half circle; superimposed on the bottom edge of the cross hatch design is a yellow horizontal rectangle with; the top half of the vertically oriented rectangle on the top is a black horizontal rectangle set above a white horizontal rectangle; super imposed on the black horizontal rectangle are three white square designs squares starting from the left edge; the first square is bisected diagonally forming two white triangle designs followed by a second white square and a third white square bisected diagonally to form two white triangles; the remainder of the rectangle is black; the white triangles and square contain drawings; the first triangle shows a black and white design of a hand holding the trap; the second triangle a black and white drawing of an arrow indicating direction for extending part of the trap up and outward; the middle square shows a black and white drawing of a teapot pouring a liquid into the trap; the next triangle shows a black and white drawing of hand holding the trap while a second had affixed the trap to branch; the last triangle shows a black and white drawing of hands disposing of the trap in the garbage; above these drawings is a horizontally oriented rectangle with the top and side edges in dotted lines to show the positioning of the design on the packaging are not claimed as part of the mark. Specimen Applicant respectfully requests the Examining Attorney reconsider the rejection of the specimen submitted in support of registration of the Applicant’s mark for Applicant’s goods in Class 5, specifically with biopesticides.
Applicant responds by stating for the record that Applicant’s goods are considered biopesticides by the U.S. Environmental Protection Agency (EPA) and as such are registered with the EPA. Biopesticide products are regulated by the EPA and require EPA approval before they may be sold to the public. As claimed in the application, Applicant’s goods include biopesticides for domestic use. Applicant’s goods are an insect trap as the Examining Attorney notes. However, because of the attractant in combination with the trap device the Applicant registered, as required, the subject goods with the EPA as a pesticide product. See the attached information from the EPA website, including applicable CFR regulations and the information on regulation and definitions of pesticides from the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). See, Section 152.500(a), which defines a device subject to registration as any product designed to “mitigate any pest [insect].”
Applicant is submitting additional specimens of use for Class 21 to show the mark in its entirety.
Disclaimer Applicant agrees to the following disclaimer.
No claim can be made to the exclusive right to use "FLY TRAP” apart from the mark as shown.
Applicant has addressed the issues raised in the Office Action and believes the application is now in condition for publication. Applicant respectfully requests that the mark be approved for publication without further delay. Please contact the undersigned Applicant’s attorney with further questions. |
|
| EVIDENCE SECTION | |
| EVIDENCE FILE NAME(S) | |
| ORIGINAL PDF FILE | evi_502391710-20190828172821893460_._58876_EPA_Evidence.pdf |
| CONVERTED PDF FILE(S) (5 pages) |
\\TICRS\EXPORT17\IMAGEOUT17\883\405\88340573\xml6\ROA0002.JPG |
| \\TICRS\EXPORT17\IMAGEOUT17\883\405\88340573\xml6\ROA0003.JPG | |
| \\TICRS\EXPORT17\IMAGEOUT17\883\405\88340573\xml6\ROA0004.JPG | |
| \\TICRS\EXPORT17\IMAGEOUT17\883\405\88340573\xml6\ROA0005.JPG | |
| \\TICRS\EXPORT17\IMAGEOUT17\883\405\88340573\xml6\ROA0006.JPG | |
| ORIGINAL PDF FILE | evi_502391710-20190828172821893460_._eCFR___Code_of_Federal_Regulations.pdf |
| CONVERTED PDF FILE(S) (1 page) |
\\TICRS\EXPORT17\IMAGEOUT17\883\405\88340573\xml6\ROA0007.JPG |
| ORIGINAL PDF FILE | evi_502391710-20190828172821893460_._cide__Fungicide__and_Rodenticide_Act__FIFRA__and_Federal_....pdf |
| CONVERTED PDF FILE(S) (11 pages) |
\\TICRS\EXPORT17\IMAGEOUT17\883\405\88340573\xml6\ROA0008.JPG |
| \\TICRS\EXPORT17\IMAGEOUT17\883\405\88340573\xml6\ROA0009.JPG | |
| \\TICRS\EXPORT17\IMAGEOUT17\883\405\88340573\xml6\ROA0010.JPG | |
| \\TICRS\EXPORT17\IMAGEOUT17\883\405\88340573\xml6\ROA0011.JPG | |
| \\TICRS\EXPORT17\IMAGEOUT17\883\405\88340573\xml6\ROA0012.JPG | |
| \\TICRS\EXPORT17\IMAGEOUT17\883\405\88340573\xml6\ROA0013.JPG | |
| \\TICRS\EXPORT17\IMAGEOUT17\883\405\88340573\xml6\ROA0014.JPG | |
| \\TICRS\EXPORT17\IMAGEOUT17\883\405\88340573\xml6\ROA0015.JPG | |
| \\TICRS\EXPORT17\IMAGEOUT17\883\405\88340573\xml6\ROA0016.JPG | |
| \\TICRS\EXPORT17\IMAGEOUT17\883\405\88340573\xml6\ROA0017.JPG | |
| \\TICRS\EXPORT17\IMAGEOUT17\883\405\88340573\xml6\ROA0018.JPG | |
| DESCRIPTION OF EVIDENCE FILE | EPA Evidence to support the Class 5 goods in the application |
| GOODS AND/OR SERVICES SECTION (005)(current) | |
| INTERNATIONAL CLASS | 005 |
| DESCRIPTION | Biopesticides for domestic use |
| FILING BASIS | Section 1(a) |
| FIRST USE ANYWHERE DATE | At least as early as 03/00/2006 |
| FIRST USE IN COMMERCE DATE | At least as early as 03/00/2006 |
| GOODS AND/OR SERVICES SECTION (005)(proposed) | |
| INTERNATIONAL CLASS | 005 |
| DESCRIPTION | Biopesticides for domestic use |
| FILING BASIS | Section 1(a) |
| FIRST USE ANYWHERE DATE | At least as early as 03/00/2006 |
| FIRST USE IN COMMERCE DATE | At least as early as 03/00/2006 |
| STATEMENT TYPE | "The substitute (or new, or originally submitted, if appropriate) specimen(s) was/were in use in commerce at least as early as the filing date of the application"[for an application based on Section 1(a), Use in Commerce] OR "The substitute (or new, or originally submitted, if appropriate) specimen(s) was/were in use in commerce prior either to the filing of the Amendment to Allege Use or expiration of the filing deadline for filing a Statement of Use" [for an application based on Section 1(b) Intent-to-Use]. OR "The attached specimen is a true copy of the specimen that was originally submitted with the application, amendment to allege use, or statement of use" [for an illegible specimen]. |
| SPECIMEN FILE NAME(S) |
\\TICRS\EXPORT17\IMAGEOUT 17\883\405\88340573\xml6\ ROA0019.JPG |
| \\TICRS\EXPORT17\IMAGEOUT 17\883\405\88340573\xml6\ ROA0020.JPG | |
| \\TICRS\EXPORT17\IMAGEOUT 17\883\405\88340573\xml6\ ROA0021.JPG | |
| \\TICRS\EXPORT17\IMAGEOUT 17\883\405\88340573\xml6\ ROA0022.JPG | |
| \\TICRS\EXPORT17\IMAGEOUT 17\883\405\88340573\xml6\ ROA0023.JPG | |
| \\TICRS\EXPORT17\IMAGEOUT 17\883\405\88340573\xml6\ ROA0024.JPG | |
| SPECIMEN DESCRIPTION | packaging for the goods bearing the mark |
| GOODS AND/OR SERVICES SECTION (021)(current) | |
| INTERNATIONAL CLASS | 021 |
| DESCRIPTION | Insect traps |
| FILING BASIS | Section 1(a) |
| FIRST USE ANYWHERE DATE | At least as early as 03/00/2006 |
| FIRST USE IN COMMERCE DATE | At least as early as 03/00/2006 |
| GOODS AND/OR SERVICES SECTION (021)(proposed) | |
| INTERNATIONAL CLASS | 021 |
| DESCRIPTION | Insect traps |
| FILING BASIS | Section 1(a) |
| FIRST USE ANYWHERE DATE | At least as early as 03/00/2006 |
| FIRST USE IN COMMERCE DATE | At least as early as 03/00/2006 |
| STATEMENT TYPE | "The substitute (or new, or originally submitted, if appropriate) specimen(s) was/were in use in commerce at least as early as the filing date of the application"[for an application based on Section 1(a), Use in Commerce] OR "The substitute (or new, or originally submitted, if appropriate) specimen(s) was/were in use in commerce prior either to the filing of the Amendment to Allege Use or expiration of the filing deadline for filing a Statement of Use" [for an application based on Section 1(b) Intent-to-Use]. OR "The attached specimen is a true copy of the specimen that was originally submitted with the application, amendment to allege use, or statement of use" [for an illegible specimen]. |
| SPECIMEN FILE NAME(S) |
\\TICRS\EXPORT17\IMAGEOUT 17\883\405\88340573\xml6\ ROA0025.JPG |
| \\TICRS\EXPORT17\IMAGEOUT 17\883\405\88340573\xml6\ ROA0026.JPG | |
| \\TICRS\EXPORT17\IMAGEOUT 17\883\405\88340573\xml6\ ROA0027.JPG | |
| \\TICRS\EXPORT17\IMAGEOUT 17\883\405\88340573\xml6\ ROA0028.JPG | |
| \\TICRS\EXPORT17\IMAGEOUT 17\883\405\88340573\xml6\ ROA0029.JPG | |
| \\TICRS\EXPORT17\IMAGEOUT 17\883\405\88340573\xml6\ ROA0030.JPG | |
| SPECIMEN DESCRIPTION | packaging for the goods bearing the entire mark |
| ADDITIONAL STATEMENTS SECTION | |
| DISCLAIMER | No claim is made to the exclusive right to use FLY TRAP apart from the mark as shown. |
| DESCRIPTION OF THE MARK (and Color Location, if applicable) |
The mark consists of two-dimensional packaging. The design on the bottom is applied to the front of the goods; the lower half of the front design consists of a narrow horizontally oriented green rectangle; above this rectangle is larger horizontally oriented light green rectangle inside and near the top edge of the light green rectangle there is an outline in white of a smaller rectangle with a curved outer edge extending outward from the right edge of the light green rectangle; superimposed upon this smaller rectangle is a stylized design of a fly in black white and gray; above the light green rectangle is a narrow green horizontally oriented rectangle with a horizontal light green line going across the top; above the line is a horizontally oriented rectangle divided with an irregular arch; the lower portion is brown with gray irregular vertical lines to simulate a wood pattern; the upper portion is dark green; Superimposed on the front design in large letters are the words "BIG BAG' in yellow letters on outlined in brown and black at the bottom superimposed on the "AG" in smaller type are the words "FLY TRAP" is white outlined in black; the remaining front of the design consists of a cross hatch design composed of black lines and the white coloring in this design represents transparency; super imposed on the cross hatch design are six black fly designs where the white coloring in this design represents transparency; at the top of the front design a half circle design that is superimposed on the cross hatch design consisting of a black dotted line with two black scissor designs along the edge of the half circle; the circle is divided by a dotted line that extends horizontally across the entire design. The line is not a part of the mark and only indicates a division between the front and back of the design with top half of the design oriented upside down; the design on the top above the dotted line is applied to the back of the goods and consists of a vertically oriented rectangle where the bottom half of the rectangle consists of a cross hatch design composed of black lines and the white coloring in this design represents transparency; super imposed on the cross hatch design are six black fly designs where the white coloring in this design represents transparency; at the bottom of the vertically oriented rectangle is a half circle design that is superimposed on the cross hatch design consisting of a black dotted line with two black scissor designs along the edge of the half circle; superimposed on the bottom edge of the cross hatch design is a yellow horizontal rectangle with; the top half of the vertically oriented rectangle on the top is a black horizontal rectangle set above a white horizontal rectangle; super imposed on the black horizontal rectangle are three white square designs squares starting from the left edge; the first square is bisected diagonally forming two white triangle designs followed by a second white square and a third white square bisected diagonally to form two white triangles; the remainder of the rectangle is black; the white triangles and square contain drawings; the first triangle shows a black and white design of a hand holding the trap; the second triangle a black and white drawing of an arrow indicating direction for extending part of the trap up and outward; the middle square shows a black and white drawing of a teapot pouring a liquid into the trap; the next triangle shows a black and white drawing of hand holding the trap while a second had affixed the trap to branch; the last triangle shows a black and white drawing of hands disposing of the trap in the garbage; above these drawings is a horizontally oriented rectangle with the top and side edges in dotted lines to show the positioning of the design on the packaging are not claimed as part of the mark. |
| ATTORNEY SECTION (current) | |
| NAME | Everett E. Fruehling |
| ATTORNEY BAR MEMBERSHIP NUMBER | NOT SPECIFIED |
| YEAR OF ADMISSION | NOT SPECIFIED |
| U.S. STATE/ COMMONWEALTH/ TERRITORY | NOT SPECIFIED |
| FIRM NAME | CHRISTENSEN O'CONNOR JOHNSON KINDNESS |
| STREET | 1201 THIRD AVENUE, SUITE 3600 |
| CITY | SEATTLE |
| STATE | Washington |
| POSTAL CODE | 98101 |
| COUNTRY | US |
| PHONE | 206-682-8100 |
| FAX | 206 224 0779 |
| efiling@cojk.com | |
| AUTHORIZED TO COMMUNICATE VIA EMAIL | Yes |
| DOCKET/REFERENCE NUMBER | STIL-2-59003 |
| ATTORNEY SECTION (proposed) | |
| NAME | Everett E. Fruehling |
| ATTORNEY BAR MEMBERSHIP NUMBER | XXX |
| YEAR OF ADMISSION | XXXX |
| U.S. STATE/ COMMONWEALTH/ TERRITORY | XX |
| FIRM NAME | CHRISTENSEN O'CONNOR JOHNSON KINDNESS |
| STREET | 1201 THIRD AVENUE, SUITE 3600 |
| CITY | SEATTLE |
| STATE | Washington |
| POSTAL CODE | 98101 |
| COUNTRY | United States |
| PHONE | 206-682-8100 |
| FAX | 206 224 0779 |
| efiling@cojk.com | |
| AUTHORIZED TO COMMUNICATE VIA EMAIL | Yes |
| DOCKET/REFERENCE NUMBER | STIL-2-59003 |
| OTHER APPOINTED ATTORNEY | Jerald E. Nagae, Reg. No. 29,418; George E. Renzoni, Ph.D., Reg. No. 37,919; John D. Denkenberger, Reg. No. 44,060; Everett E. Fruehling; Brandon C. Stallman, Reg. No. 46,468; Laura A. Cruz, Reg. No. 46,649; Ryan E. Dodge, Jr., Reg. No. 42,492; Brian W. Poor, Reg. No. 32,928; Margie B. Aoki, Reg. No. 62,644; Matthew D. Balint, Reg. No. 61,038; Llewellyn Rhys Lawson, Reg. No. 57,869; David P. Sheldon, Reg. No. 62,494; Brian F. McMahon; Melissa A. Nowak, Reg. No. 68,088; B. Casey Fitzpatrick, Reg. No. 66,847, Jadran Adrian Mihailovic, Reg. No. 57,874; James Y. Go, Reg. No. 40,621; and Cory G. Claassen, Reg. No. 50,296; Thomas S. (Stasiu) Nowak, Reg. No. 67,998; Jennifer R. Ashton |
| CORRESPONDENCE SECTION (current) | |
| NAME | EVERETT E. FRUEHLING |
| FIRM NAME | CHRISTENSEN O'CONNOR JOHNSON KINDNESS |
| STREET | 1201 THIRD AVENUE, SUITE 3600 |
| CITY | SEATTLE |
| STATE | Washington |
| POSTAL CODE | 98101 |
| COUNTRY | US |
| PHONE | 206-682-8100 |
| FAX | 206 224 0779 |
| efiling@cojk.com | |
| AUTHORIZED TO COMMUNICATE VIA EMAIL | Yes |
| DOCKET/REFERENCE NUMBER | STIL-2-59003 |
| CORRESPONDENCE SECTION (proposed) | |
| NAME | Everett E. Fruehling |
| FIRM NAME | CHRISTENSEN O'CONNOR JOHNSON KINDNESS |
| STREET | 1201 THIRD AVENUE, SUITE 3600 |
| CITY | SEATTLE |
| STATE | Washington |
| POSTAL CODE | 98101 |
| COUNTRY | United States |
| PHONE | 206-682-8100 |
| FAX | 206 224 0779 |
| efiling@cojk.com | |
| AUTHORIZED TO COMMUNICATE VIA EMAIL | Yes |
| DOCKET/REFERENCE NUMBER | STIL-2-59003 |
| SIGNATURE SECTION | |
| DECLARATION SIGNATURE | /Jennifer R. Ashton/ |
| SIGNATORY'S NAME | Jennifer R. Ashton |
| SIGNATORY'S POSITION | Of Counsel, Christensen O'Connor Johnson Kindness, Washington State bar member |
| SIGNATORY'S PHONE NUMBER | 206 695.1614 |
| DATE SIGNED | 08/28/2019 |
| RESPONSE SIGNATURE | /Jennifer R. Ashton/ |
| SIGNATORY'S NAME | Jennifer R. Ashton |
| SIGNATORY'S POSITION | Of Counsel, Christensen O'Connor Johnson Kindness, Washington State bar member |
| SIGNATORY'S PHONE NUMBER | 206 695.1614 |
| DATE SIGNED | 08/28/2019 |
| AUTHORIZED SIGNATORY | YES |
| FILING INFORMATION SECTION | |
| SUBMIT DATE | Wed Aug 28 18:00:25 EDT 2019 |
| TEAS STAMP | USPTO/ROA-XX.XXX.XX.XX-20 190828180025925471-883405 73-610d742df18d11e8727668 52ffac1fda8ae54b14a4c6a1e 113942afa1877541f30-N/A-N /A-20190828172821893460 |
| 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) |
In the Office Action dated May 16, 2019, Applicant responds by (1) confirming the mark is two-dimensional and amending the description of the mark, (2) providing additional specimens of the mark and (2) entering a disclaimer.
The Mark is Two-Dimensional
The mark applied for is a two-dimensional design of a product label shown flat that will be used as product packaging. The mark description has been amended accordingly as follows.
The mark consists of two-dimensional packaging. The design on the bottom is applied to the front of the goods; the lower half of the front design consists of a narrow horizontally oriented green rectangle; above this rectangle is larger horizontally oriented light green rectangle inside and near the top edge of the light green rectangle there is an outline in white of a smaller rectangle with a curved outer edge extending outward from the right edge of the light green rectangle; superimposed upon this smaller rectangle is a stylized design of a fly in black white and gray; above the light green rectangle is a narrow green horizontally oriented rectangle with a horizontal light green line going across the top; above the line is a horizontally oriented rectangle divided with an irregular arch; the lower portion is brown with gray irregular vertical lines to simulate a wood pattern; the upper portion is dark green; Superimposed on the front design in large letters are the words "BIG BAG' in yellow letters on outlined in brown and black at the bottom superimposed on the "AG" in smaller type are the words "FLY TRAP" is white outlined in black; the remaining front of the design consists of a cross hatch design composed of black lines and the white coloring in this design represents transparency; super imposed on the cross hatch design are six black fly designs where the white coloring in this design represents transparency; at the top of the front design a half circle design that is superimposed on the cross hatch design consisting of a black dotted line with two black scissor designs along the edge of the half circle; the circle is divided by a dotted line that extends horizontally across the entire design. The line is not a part of the mark and only indicates a division between the front and back of the design with top half of the design oriented upside down; the design on the top above the dotted line is applied to the back of the goods and consists of a vertically oriented rectangle where the bottom half of the rectangle consists of a cross hatch design composed of black lines and the white coloring in this design represents transparency; super imposed on the cross hatch design are six black fly designs where the white coloring in this design represents transparency; at the bottom of the vertically oriented rectangle is a half circle design that is superimposed on the cross hatch design consisting of a black dotted line with two black scissor designs along the edge of the half circle; superimposed on the bottom edge of the cross hatch design is a yellow horizontal rectangle with; the top half of the vertically oriented rectangle on the top is a black horizontal rectangle set above a white horizontal rectangle; super imposed on the black horizontal rectangle are three white square designs squares starting from the left edge; the first square is bisected diagonally forming two white triangle designs followed by a second white square and a third white square bisected diagonally to form two white triangles; the remainder of the rectangle is black; the white triangles and square contain drawings; the first triangle shows a black and white design of a hand holding the trap; the second triangle a black and white drawing of an arrow indicating direction for extending part of the trap up and outward; the middle square shows a black and white drawing of a teapot pouring a liquid into the trap; the next triangle shows a black and white drawing of hand holding the trap while a second had affixed the trap to branch; the last triangle shows a black and white drawing of hands disposing of the trap in the garbage; above these drawings is a horizontally oriented rectangle with the top and side edges in dotted lines to show the positioning of the design on the packaging are not claimed as part of the mark.
Specimen
Applicant respectfully requests the Examining Attorney reconsider the rejection of the specimen submitted in support of registration of the Applicant’s mark for Applicant’s goods in Class 5, specifically with biopesticides.
Applicant responds by stating for the record that Applicant’s goods are considered biopesticides by the U.S. Environmental Protection Agency (EPA) and as such are registered with the EPA. Biopesticide products are regulated by the EPA and require EPA approval before they may be sold to the public. As claimed in the application, Applicant’s goods include biopesticides for domestic use. Applicant’s goods are an insect trap as the Examining Attorney notes. However, because of the attractant in combination with the trap device the Applicant registered, as required, the subject goods with the EPA as a pesticide product. See the attached information from the EPA website, including applicable CFR regulations and the information on regulation and definitions of pesticides from the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). See, Section 152.500(a), which defines a device subject to registration as any product designed to “mitigate any pest [insect].”
Applicant is submitting additional specimens of use for Class 21 to show the mark in its entirety.
Disclaimer
Applicant agrees to the following disclaimer.
No claim can be made to the exclusive right to use "FLY TRAP” apart from the mark as shown.
Applicant has addressed the issues raised in the Office Action and believes the application is now in condition for publication. Applicant respectfully requests that the mark be approved for publication without further delay. Please contact the undersigned Applicant’s attorney with further questions.
DECLARATION: The signatory being warned that willful false statements and the like are punishable by fine or imprisonment, or both, under 18 U.S.C. § 1001, and that such willful false statements and the like may jeopardize the validity of the application or submission or any registration resulting therefrom, declares that, if the applicant submitted the application or allegation of use (AOU) unsigned, all statements in the application or AOU and this submission based on the signatory's own knowledge are true, and all statements in the application or AOU and this submission made on information and belief are believed to be true.
STATEMENTS FOR UNSIGNED SECTION 1(a) APPLICATION/AOU: If the applicant filed an unsigned application under 15 U.S.C. §1051(a) or AOU under 15 U.S.C. §1051(c), the signatory additionally believes that: the applicant is the owner of the mark sought to be registered; the mark is in use in commerce and was in use in commerce as of the filing date of the application or AOU on or in connection with the goods/services/collective membership organization in the application or AOU; the original specimen(s), if applicable, shows the mark in use in commerce as of the filing date of the application or AOU on or in connection with the goods/services/collective membership organization in the application or AOU; for a collective trademark, collective service mark, collective membership mark application, or certification mark application, the applicant is exercising legitimate control over the use of the mark in commerce and was exercising legitimate control over the use of the mark in commerce as of the filing date of the application or AOU; for a certification mark application, the applicant is not engaged 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. To the best of the signatory's knowledge and belief, no other persons, except, if applicable, authorized users, members, and/or concurrent users, have the right to use the mark in commerce, either in the identical form or in such near resemblance as to be likely, when used on or in connection with the goods/services/collective membership organization of such other persons, to cause confusion or mistake, or to deceive.
STATEMENTS FOR UNSIGNED SECTION 1(b)/SECTION 44 APPLICATION AND FOR SECTION 66(a) COLLECTIVE/CERTIFICATION MARK APPLICATION: If the applicant filed an unsigned application under 15 U.S.C. §§ 1051(b), 1126(d), and/or 1126(e), or filed a collective/certification mark application under 15 U.S.C. §1141f(a), the signatory additionally believes that: for a trademark or service mark application, the applicant is entitled to use the mark in commerce on or in connection with the goods/services specified in the application; the applicant has a bona fide intention to use the mark in commerce and had a bona fide intention to use the mark in commerce as of the application filing date; for a collective trademark, collective service mark, collective membership mark, or certification mark application, the applicant has a bona fide intention, and is entitled, to exercise legitimate control over the use of the mark in commerce and had a bona fide intention, and was entitled, to exercise legitimate control over the use of the mark in commerce as of the application filing date; the signatory is properly authorized to execute the declaration on behalf of the applicant; for a certification mark application, 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. To the best of the signatory's knowledge and belief, no other persons, except, if applicable, authorized users, members, and/or concurrent users, have the right to use the mark in commerce, either in the identical form or in such near resemblance as to be likely, when used on or in connection with the goods/services/collective membership organization of such other persons, to cause confusion or mistake, or to deceive.
