UNITED STATES PATENT AND TRADEMARK OFFICE (USPTO)
OFFICE ACTION (OFFICIAL LETTER) ABOUT APPLICANT’S TRADEMARK APPLICATION
U.S. APPLICATION SERIAL NO. 88346914
MARK: HEALTH
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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: Health Brands 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: 6/4/2019
The referenced application 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.
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).
· Trademark Act Section 2(e)(1) Refusal – Merely Descriptive
SECTION 2(e)(1) REFUSAL - MERELY DESCRIPTIVE
Applicant seeks to register the mark HEALTH for:
Class |
Identification of Goods |
3 |
Cosmetics; Make-up; Skin cleansers; Skin conditioners; Skin lotions; Skin moisturizer; Sunscreen preparations; Toothpaste; Hair shampoo; Personal deodorants |
5 |
Dietary supplements; Protein dietary supplements formed and packaged as bars |
25 |
Pants; Shirts; Socks; Swim wear for gentlemen and ladies; Yoga pants; Yoga socks; Athletic shirts; Yoga shirts |
27 |
Yoga mats |
28 |
Yoga blankets; Yoga blocks; Yoga boards; Yoga bolsters; Yoga cushions; Yoga gloves; Yoga straps |
30 |
Granola-based snack bars |
32 |
Bottled water |
Only where the combination of descriptive terms creates a unitary mark with a unique, incongruous, or otherwise nondescriptive meaning in relation to the goods is the combined mark registrable. See In re Colonial Stores, Inc., 394 F.2d 549, 551, 157 USPQ 382, 384 (C.C.P.A. 1968); In re Positec Grp. Ltd., 108 USPQ2d 1161, 1162-63 (TTAB 2013).
In this case, both the individual components and the composite result are descriptive of applicant’s goods and do not create a unique, incongruous, or nondescriptive meaning in relation to the goods. Specifically, according to dictionary evidence from the Merriam-Webster and The American Heritage, the wording “HEALTH” refers to “the overall condition of an organism at a given time” and “the condition of being sound in body, mind, or spirit”. Thus, the wording “HEALTH” describes applicant’s goods because applicant’s goods are used for the purpose of achieving “health” or “the condition of being sound in body, mind, or spirit”.
Class 3
The attached evidence from Nestle Skin Health, Healthline, OnHealth, Refinery29, Ckanani, Totalbeauty, Oral-B and Reviews.com show that the wording “HEALTH” is used in connection to beauty products to refer to the ingredients that help achieve a greater overall beauty “health”, including skin, hair and oral “health”.
Class 5 and Class 30
The attached evidence from LECOM Health, Healthline, Organic Facts, WebMD, Nutritious Life and Women’s Health show that the wording “HEALTH” is used in connection to dietary supplements and snack bars, including protein supplements in the form of snack bars and granola-based snack bars, to refer to the healthy ingredients used in the products to achieve greater dietary “health”.
Class 25
The attached evidence from Verywellhealth, CNN and Healthline show that the wording “HEALTH” is used in connection to “smart” clothing because these types of clothing are part of “wearable” or “health technology” and are used for the purpose of tracking the wearer’s “health”.
Class 27 and Class 28
The attached evidence from Yoga Journal, Healthline, Harvard Health Publishing from Harvard Medical School, American Osteopathic Association and MedlinePlus show that “yoga” provides numerous “health” benefits. Further, the attached evidence from EcoWatch, Swirled, Livestrong, Ekaminhale, Business Insider and Rawganique show that applicant’s yoga related products, such as mats, blankets, and other yoga equipment, are marketed to have “health” benefits depending on the type of materials (chemical-free) used in the products and are also used for the purpose of achieving yoga “health” benefits. Thus, the wording “HEALTH” is used in association with yoga products to describe the “health” benefits achieved from using them.
Class 32
The attached evidence from International Bottled Water Association (IBWA), Centers for Disease Control and Prevention (CDC), Livestrong and Thrillist show that the wording “HEALTH” is commonly associated with “bottled water”. People drink water for “health” reasons, and water is advertised as the “healthy” choice depending on the purification process, origin, and minerals contained in the water.
Therefore, because the wording “HEALTH” is descriptive of the use and/or purpose of applicant’s goods, the applied-for mark is refused registration for merely descriptiveness under Trademark Act Section 2(e)(1).
AMENDMENT TO SUPPLEMENT REGISTER
If applicant files an acceptable allegation of use and also amends to the Supplemental Register, the application effective filing date will be the date applicant met the minimum filing requirements under 37 C.F.R. §2.76(c) for an amendment to allege use. TMEP §§816.02, 1102.03; see 37 C.F.R. §2.75(b). In addition, the undersigned trademark examining attorney will conduct a new search of the USPTO records for conflicting marks based on the later application filing date. TMEP §§206.01, 1102.03.
Although applicant’s mark has been refused registration, applicant may respond to the refusal by submitting evidence and arguments in support of registration.
Response guidelines. For this application to proceed, applicant must explicitly address the refusal in this Office action. For a refusal, applicant may provide written arguments and evidence against the refusal, and may have other response options if specified above. Please see “Responding to Office Actions” and the informational video “Response to Office Action” for more information and tips on responding.
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. 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.
/Joanna Han/
Joanna Han
Trademark Examining Attorney
Law Office 126
(571) 270-3617
joanna.han@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.