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. 88352388 VIVA NATURALS ORGANIC(Standard Characters, see http://uspto.report/TM/88352388/mark.png) has been amended as follows:

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

This is in response to the Office Action from the Trademark Examining Attorney (“Examining Attorney”) dated April 15, 2019 (the “Office Action”) with regard to the above-referenced application (the “Application”) for the trademark VIVA NATURALS ORGANIC (the “Trademark” or the “mark”). 

The Applicant submits the remarks below in support of its position that the mark ought not to be refused for registration because of a likelihood of confusion with the mark in U.S. Registration No. 5490145 (for “VIVA BY YAYA ORGANICS,” hereinafter referred to as the “Cited Mark”) with respect to International Class 03 of the goods associated with the Trademark only.

Further, with respect to the Examining Attorney’s concerns regarding the “Identification of Goods,” the Applicant has amended what the Examining Attorney felt constituted wording that was too broad with respect to portions of the identification of goods in Classes 11, 29, and 30, adopting the wording suggested by the Examining Attorney as it is accurate, and trusts that this will satisfy the Examining Attorney in this respect.

Lastly, regarding the disclaimer requirement for the words “NATURALS ORGANIC,” the Applicant submits the remarks below in support of its position that only a disclaimer of the word “ORGANIC” should be required and asks the Examining Attorney to reconsider and withdraw the disclaimer requirement with respect to the word “NATURALS” only.  

LIKELIHOOD OF CONFUSION – SECTION 2(D) – REFUSAL - CLASS 03 ONLY

As the Examining Attorney states:

“Trademark Act Section 2(d) bars registration of an applied-for mark that is so similar to a registered mark that it is likely consumers would be confused, mistaken, or deceived as to the commercial source of the goods and/or services of the parties.  See 15 U.S.C. §1052(d).  Likelihood of confusion is determined on a case-by-case basis by applying the factors set forth in In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 1361, 177 USPQ 563, 567 (C.C.P.A. 1973) (called the “du Pont factors”).  In re i.am.symbolic, llc, 866 F.3d 1315, 1322, 123 USPQ2d 1744, 1747 (Fed. Cir. 2017).  Only those factors that are “relevant and of record” need be considered.  M2 Software, Inc. v. M2 Commc’ns, Inc., 450 F.3d 1378, 1382, 78 USPQ2d 1944, 1947 (Fed. Cir. 2006) (citing Shen Mfg. Co. v. Ritz Hotel Ltd., 393 F.3d 1238, 1241, 73 USPQ2d 1350, 1353 (Fed. Cir. 2004)); see In re Inn at St. John’s, LLC, 126 USPQ2d 1742, 1744 (TTAB 2018).”

“Although not all du Pont factors may be relevant, there are generally two key considerations in any likelihood of confusion analysis: (1) the similarities between the compared marks and (2) the relatedness of the compared goods and/or services.  See In re i.am.symbolic, llc, 866 F.3d at 1322, 123 USPQ2d at 1747 (quoting Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d 1156, 1164-65, 64 USPQ2d 1375, 1380 (Fed. Cir. 2002)); Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 1103, 192 USPQ 24, 29 (C.C.P.A. 1976) (“The fundamental inquiry mandated by [Section] 2(d) goes to the cumulative effect of differences in the essential characteristics of the goods [or services] and differences in the marks.”); TMEP §1207.01.”

The Applicant agrees that the relevant du Pont factors are: (1) the similarities between the compared marks and (2) the relatedness of the compared goods and/or services.

THE TRADEMARK AND THE CITED MARK

As set out by the Examining Attorney in the “Facts” section of the Office Action, the goods in Class 03 associated with the Trademark and the goods in Class 03 associated with the Cited Mark, respectively, are as follows:

 “VIVA NATURALS ORGANIC” - essential oils; beauty oils for cosmetic purposes; non-medicated oils for use on the skin; scented oils; aromatherapy preparations, namely, aromatherapy oils in the nature of essential oils; all of the foregoing featuring all-natural ingredients.

“VIVA BY YAYA ORGANICS”, for use in connection with, “organic face oils.”

SIMILARITIES OF THE MARKS

As the Examining Attorney states:

“When considering the similarities of 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).”

As the Examining Attorney knows, there is no mechanical test for determining likelihood of confusion and "each case must be decided on its own facts." Du Pont, 476 F.2d at 1361, 177 USPQ at 567. Further, under In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 1361, 177 USPQ 563, 567 (C.C.P.A. 1973), the first factor requires examination of "the similarity or dissimilarity of the marks in their entireties as to appearance, sound, connotation and commercial impression." The test of likelihood of confusion is not whether the marks can be distinguished when subjected to a side-by-side comparison, but whether the marks are sufficiently similar that there is a likelihood of confusion as to the source of the goods or services. See Zheng Cai v. Diamond Hong, Inc., __ F.3d __, 127 USPQ2d 1797, 1801 (Fed. Cir. 2018); Midwestern Pet Foods, Inc., v. Societe Des Produits Nestle S.A., 685 F3d 1046, 1053, 103 USPQ2d 1435, 1440 (Fed. Cir. 2012); Edom Labs., Inc. v. Lichter, 102 USPQ2d 1546, 1551 (TTAB 2012); In re Iolo Techs., LLC, 95 USPQ2d 1498, 1499 (TTAB 2010). When comparing the marks, "[a]ll relevant facts pertaining to appearance, sound, and connotation must be considered before similarity as to one or more of those factors may be sufficient to support a finding that the marks are similar or dissimilar." Recot, Inc. v. M.C. Becton, 214 F.3d 1322, 1329, 54 USPQ2d 1894, 1899 (Fed. Cir. 2000).

With respect to the Trademark, the Examining Attorney states: “The goods of the applicant feature all-natural ingredients such that the term ‘natural’ describes the features of the goods. The term ‘organic’ refers, in pertinent part, to something, ‘of, relating to, yielding, or involving the use of food produced with the use of feed or fertilizer of plant or animal origin without employment of chemically formulated fertilizers, growth stimulants, antibiotics, or pesticides’. See attached, Merriam-Webster Dictionary. As evidence by the attached third-party websites, the term ‘organic’ – in addition to food – is used to refer to characteristics of other goods, including oils and supplements. See, e.g., Plant Therapy; Garden of Life. Consequently, the term ‘organic’ in the mark is also descriptive of features of the applicant’s goods. Because the wording ‘naturals organic’ merely describes attributes of the applicant’s goods, the dominant feature of the mark of the applicant, with respect to the overall commercial impression created by the mark, is the word ‘VIVA’.

The Applicant submits that the words ‘naturals organic’ do not merely describe attributes of the applicant’s goods such that the dominant feature of the Trademark with respect to the overall commercial impression created by the mark is the word “VIVA.” Again, under In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 1361, 177 USPQ 563, 567 (C.C.P.A. 1973), the first factor requires examination of "the similarity or dissimilarity of the marks in their entireties as to appearance, sound, connotation and commercial impression." And, when comparing the marks, "[a]ll relevant facts pertaining to appearance, sound, and connotation must be considered before similarity as to one or more of those factors may be sufficient to support a finding that the marks are similar or dissimilar." Recot, Inc. v. M.C. Becton, 214 F.3d 1322, 1329, 54 USPQ2d 1894, 1899 (Fed. Cir. 2000).

The Court of Appeals for the Federal Circuit has provided the following guidance for evaluating the marks:

The basic principle in determining confusion between marks is that marks must be compared in their entireties and must be considered in connection with the particular goods or services for which they are used. It follows from that principle that likelihood of confusion cannot be predicated on dissection of a mark, that is, on only part of a mark. On the other hand, in articulating reasons for reaching a conclusion on the issue of confusion, there is nothing improper in stating that, for rational reasons, more or less weight has been given to a particular feature of a mark, provided the ultimate conclusion rests on consideration of the marks in their entireties. Indeed, this type of analysis appears to be unavoidable.

In re Nat’l Data Corp., 753 F.2d 1056, 1058, 224 USPQ 749, 750-51 (Fed. Cir. 1985) (footnotes omitted) (citations omitted). TMEP §1207.01(b).

Contrary to the Examining Attorney’s statements that “[t]he goods of the applicant feature all-natural ingredients such that the term ‘natural’ describes the features of the goods,” and “the wording ‘naturals organic’ merely describes attributes of the applicant’s goods,” the wording “naturals” itself when considering the Trademark as a whole is actually part of the Applicant’s name and part of an indicator of source of the goods associated with the Trademark. In other words, the word “naturals” is key to the Trademark’s functioning as a trademark. The Applicant submits that this analysis is necessary given that all relevant facts pertaining to appearance, sound, and connotation must be considered before similarity as to one or more of those factors may be sufficient to support a finding that the marks are similar or dissimilar and given that the Trademark as a whole is to be considered. While, as stated by the Court of Appeals for the Federal Circuit above, there is nothing improper in stating that, for rational reasons, more or less weight has been given to a particular feature of a mark, provided the ultimate conclusion rests on consideration of the marks in their entireties, the Applicant respectfully submits that the weight given to the “naturals organic” and “VIVA” features of the Trademark by the Examining Attorney resulted in an ultimate conclusion that was reached by not considering the Trademark in its entirety. 

In regard to the Trademark, and considering all relevant factors with respect to appearance, sound, connotation, and taking commercial impression into consideration, the Trademark as a whole as well as the Applicant itself in this instance must be taken into account. Given that the Applicant is VIVA NATURALS INC., it is an artificial dissection of the Trademark to analyze the words “naturals organic” in isolation from the other constituent parts of the Trademark to suggest that these words are merely descriptive and are not part of the overall commercial impression created by the Trademark. Notably, the word “organic” does fit this description because it is not part of the Applicant’s name. However, because the Applicant is VIVA NATURALS INC., the Applicant submits that the dominant feature of the mark of the Trademark, with respect to the overall commercial impression created by the mark, are the words “VIVA NATURALS.”

As the Examining Attorney points out, both the Trademark and the Cited Mark contain the words “VIVA” and the Trademark contains the word “ORGANIC” while the Cited Mark contains the word “ORGANICS.” With respect to the Cited Mark, the Examining Attorney notes: “The mark of the registrant is ‘VIVA BY YAYA ORGANICS’. Registrant has disclaimed exclusive rights to the use of the term ‘organics’ due to its descriptive nature. Consequently, the dominant feature of the mark of the registrant, with respect to the overall impression created by its mark, is the wording ‘VIVA BY YAYA’. Hence, the dominant feature of the mark of the applicant is ‘VIVA’ and the dominant feature of the mark of the registrant is ‘VIVA BY YAYA’. The although applicant’s mark does not contain the wording ‘BY YAYA’, applicant’s mark is likely to appear to prospective purchasers as a shortened form of registrant’s mark. See In re Mighty Leaf Tea, 601 F.3d 1342, 1348, 94 USPQ2d 1257, 1260 (Fed. Cir. 2010) (quoting United States Shoe Corp., 229 USPQ 707, 709 (TTAB 1985)).  That is, applicant’s mark does not create a distinct commercial impression from the registered mark because it contains some of the wording in the registered mark and does not add any wording that would distinguish it from that mark. Therefore, the marks are confusingly similar.”

Undertaking the same analysis of the Cited Mark as the Applicant has with respect to the Trademark above, and which the Applicant submits is necessary, would lead to the conclusion that the dominant feature of the Cite Mark is still “VIVA BY YAYA” given the disclaimer of the word “ORGANICS.” When looking at the USPTO trademark database, specifically registered trademarks, it appears to be quite commonplace for “ORGANICS” and “NATURAL” or “NATURALS” to be disclaimed. However, in no registration fitting these criteria does the owner of the trademark have the word “NATURALS” specifically in their name. Put another way, there is no functionality of the word “NATURALS” in these instances as anything other than mere description.

Regarding commercial impression, as noted above, the 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). Additionally, also as noted above, 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). With respect to the Trademark and the Cited Mark, the commercial impressions, stemming from the dominant features of each of these respective trademarks, the Applicant submits are “VIVA NATURALS” and “VIVA BY YAYA.” The Applicant submits that the trademarks are not sufficiently similar in terms of their commercial impressions such that consumers who encounter the marks would be likely to assume a connection between the parties, to assume that the Trademark is a shortened form of the Cited Mark, or for there to be a likelihood of confusion with respect the source of the goods or services. Rather, consumers would encounter the Trademark as a brand and the Cited Mark as a brand given that the trademarks themselves directly reference the name of the Applicant and the owner of the Cited Mark respectively. In fact, prospective consumers would differentiate the Trademark and the Cited Mark due to the differences in their dominant features, namely that the Trademark contains the dominant features “VIVA NATURALS” which is a direct reference to the Applicant and the dominant features of the Cited Mark do not contain the word “NATURALS” and instead contain “BY YAYA” which is a, again, a direct reference to the owner of the Cited Mark. In short, the dominant features of the Trademark and the Cited Mark create different commercial impressions for prospective purchasers.

RELATEDNESS OF THE GOODS

The Applicant concedes that the goods associated with the Trademark in Class 03 are broad enough to capture the goods, “organic face oils,” associated with the Cited Mark in Class 03, but disagrees with the Examining Attorney’s overall conclusion in the Office Action as a whole that the Trademark and the Cited Mark are confusingly similar. The Applicant submits that the controlling du Pont factor is the similarities between the compared marks or, in this instance, the lack thereof.

CONCLUSION WITH RESPECT TO THE LIKELIHOOD OF CONFUSION – SECTION 2(D) – REFUSAL - CLASS 03 ONLY

As the Examining Attorney states: “The overriding concern is not only to prevent buyer confusion as to the source of the goods and/or services, but to protect the registrant from adverse commercial impact due to use of a similar mark by a newcomer.  See In re Shell Oil Co., 992 F.2d 1204, 1208, 26 USPQ2d 1687, 1690 (Fed. Cir. 1993).  Therefore, any doubt regarding a likelihood of confusion determination is resolved in favor of the registrant.  TMEP §1207.01(d)(i); see Hewlett-Packard Co. v. Packard Press, Inc., 281 F.3d 1261, 1265, 62 USPQ2d 1001, 1003 (Fed. Cir. 2002); In re Hyper Shoppes (Ohio), Inc., 837 F.2d 463, 464-65, 6 USPQ2d 1025, 1026 (Fed. Cir. 1988).” For the foregoing reasons, the Applicant submits that there would be no confusion as to the source of the goods as between the Trademark and the Cited Mark and there is no doubt with respect to the likelihood of confusion. Moreover, given that both the Trademark and the Cited Mark both explicitly incorporate their respective company names into their trademarks, at least in part, the Applicant submits that there is no need to protect the registrant from adverse commercial impact, particularly given that, as the Applicant submits above, the Trademark and the Cited Mark have differing dominant features and create different commercial impressions for prospective purchasers.

While the goods associated with the Trademark and the Cited Mark are related, the Applicant respectfully submits that the controlling du Pont factor is the similarities between the compared marks or, in this instance, the lack thereof. Again, the Applicant’s submits that there is a lack of similarities with respect to the commercial impressions created by the dominant features of the Trademark and the Cited Mark and, given the Applicant’s submission that this du Pont factor is controlling, should be given significant weight and lead the Examining Attorney to the conclusion that prospective purchasers will not be confused, mistaken, or deceived as to the commercial source of the goods in Class 03 associated with the Trademark and the Cited Mark.

Therefore, in view of the foregoing, the Applicant respectfully requests withdrawal of the Section 2(d) refusal, with respect to Class 03 only, to register the Trademark. The registration of the Trademark does not present a likelihood of confusion with the mark in U.S. Registration No. 5490145.

IDENTIFICATION OF GOODS

With respect to the Examining Attorney’s concerns regarding the “Identification of Goods,” the Applicant has amended what the Examining Attorney felt constituted wording that was too broad with respect to portions of the identification of goods in Classes 11, 29, and 30, adopting the wording suggested by the Examining Attorney as it is accurate, and trusts that this will satisfy the Examining Attorney in this respect.

DISCLAIMER

The Examining Attorney states:

“Applicant must provide a disclaimer of the unregistrable parts of the applied-for mark even though the mark as a whole appears to be registrable.  See 15 U.S.C. §1056(a); TMEP §§1213, 1213.03(a).  A disclaimer of an unregistrable part of a mark will not affect the mark’s appearance.  See Schwarzkopf v. John H. Breck, Inc., 340 F.2d 978, 979-80, 144 USPQ 433, 433 (C.C.P.A. 1965).”

The Examining Attorney further states: “In this case, applicant must disclaim the wording “NATURALS ORGANIC” in the mark because it is not inherently distinctive.  These unregistrable terms at best are merely descriptive of features of applicant’s goods.  See 15 U.S.C. §1052(e)(1); DuoProSS Meditech Corp. v. Inviro Med. Devices, Ltd., 695 F.3d 1247, 1251, 103 USPQ2d 1753, 1755 (Fed. Cir. 2012); TMEP §§1213, 1213.03(a).” 

The Examining Attorney continues: “As provided above, applicant’s goods are described as all-natural.  Further, applicant’s goods are of a type that may be ‘…produced with the use of feed or fertilizer of plant or animal origin without employment of chemically formulated fertilizers, growth stimulants, antibiotics, or pesticides’, or organic.  See, e.g, HelpGuide; Wellness Mama; Pranin Organic.  Consequently, the wording ‘naturals organic’ merely describe features of the applicant’s goods such that applicant must disclaim exclusive rights to the use of this wording apart from the mark as shown.”

As the Examining Attorney knows, the term “merely” with respect to the confines of 2(e)(1) means “only.” The elements of the Trademark in question must not do anything more than describe the particular goods. In re Colonial Stores, Inc., 157 USPQ 382 (CCPA 1968). As submitted by the Applicant above, the dominant features of the Trademark, constituting its overall commercial impression, are the words “VIVA NATURALS.” It is for the same reason that the Applicant submits that the word “NATURALS” is not merely descriptive of features of the Applicant’s goods but, rather, part of an inherently distinctive aspect of the Trademark that refers to the Applicant directly, namely “VIVA NATURALS” and thus is at best merely suggestive of features of the Applicant’s goods. The word “ORGANIC” does not function in the same way and the Applicant agrees that it would be appropriate to disclaim this word.

The elements of the Trademark in question, specifically “NATURALS,” when considered alongside the word “VIVA” as noted above, does not “forthwith convey an immediate idea of an ingredient, quality, characteristic, function or feature of the product in connection with which it is used.” In re Bright-Crest, Ltd., 204 USPQ 591 (TTAB 1979). Rather, some imagination, thought and perception are required to reach a conclusion as to the nature of the goods and services bearing the Trademark.  In re Hunter Publishing Co., 204 USPQ 957 (TTAB 1979). Put another way, some “mental pause” is required. See In re Shutts, 217 USPQ 363, 364-65 (TTAB 1983) (SNO-RAKE found not merely descriptive of a tool used to scrape snow). The Applicant submits that it is as or more likely that a prospective purchaser will view the word “NATURALS” in combination with the word “VIVA” as “VIVA NATURALS” and associate these dominant features of the Trademark with the Applicant as it is that a prospective purchaser will associate the word “NATURALS” as descriptive of features of Applicant’s goods. Hence, at least the word “NATURALS” in taking into considerations its connection with the word “VIVA” noted above, does not merely, it does not only, describe features of the Applicant’s goods and is at best merely suggestive of features of the Applicant’s goods.

CONCLUSION WITH RESPECT TO DISCLAIMER

In view of the foregoing, the Applicant respectfully requests that that Examining Attorney reconsider and withdraw the disclaimer requirement with respect to the word “NATURALS” only.

CLASSIFICATION AND LISTING OF GOODS/SERVICES

Applicant proposes to amend the following class of goods/services in the application:
Current: Class 003 for Essential oils; beauty oils for cosmetic purposes; non-medicated oils for use on the skin; scented oils; aromatherapy preparations, namely, aromatherapy oils in the nature of essential oils; all of the foregoing featuring all-natural ingredients
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: Essential oils; beauty oils for cosmetic purposes; non-medicated oils for use on the skin; scented oils; aromatherapy preparations, namely, aromatherapy oils in the nature of essential oils; all of the foregoing featuring all-natural ingredients; all of the foregoing featuring all-natural organic ingredientsClass 003 for Essential oils; beauty oils for cosmetic purposes; non-medicated oils for use on the skin; scented oils; aromatherapy preparations, namely, aromatherapy oils in the nature of essential oils; all of the foregoing featuring all-natural organic ingredients
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 005 for Dietary and nutritional supplements; nutritional supplements, namely, minerals and mineral preparations; health food supplements made principally of vitamins and minerals; herbal supplements and herbal extracts for medicinal purposes; all of the foregoing featuring all-natural ingredients
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: Dietary and nutritional supplements; nutritional supplements, namely, minerals and mineral preparations; health food supplements made principally of vitamins and minerals; herbal supplements and herbal extracts for medicinal purposes; all of the foregoing featuring all-natural ingredients; all of the foregoing featuring all-natural organic ingredientsClass 005 for Dietary and nutritional supplements; nutritional supplements, namely, minerals and mineral preparations; health food supplements made principally of vitamins and minerals; herbal supplements and herbal extracts for medicinal purposes; all of the foregoing featuring all-natural organic ingredients
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 011 for Electronic air diffusers for personal use for the misting of essential oils; Apparatus for scenting the air, namely, electrically powered diffusers for misting essential oils to create an aroma for household use
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: Electronic air diffusers for personal use for the misting of essential oils; Electronic air diffusers for personal use for the misting of essential oils sold empty; Apparatus for scenting the air, namely, electrically powered diffusers for misting essential oils to create an aroma for household use; Apparatus for scenting the air, namely, electrically powered diffusers for misting essential oils to create an aroma for household use sold emptyClass 011 for Electronic air diffusers for personal use for the misting of essential oils sold empty; Apparatus for scenting the air, namely, electrically powered diffusers for misting essential oils to create an aroma for household use sold empty
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 Dried berries; dried fruits; dried roots in powdered form; edible oils and fats sold via retail channels; nut and seed-based snack bars; all of the foregoing featuring all-natural ingredients
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: Dried berries; dried fruits; dried roots in powdered form; dried roots in powdered form for human consumption; edible oils and fats sold via retail channels; nut and seed-based snack bars; all of the foregoing featuring all-natural ingredients; all of the foregoing featuring all-natural organic ingredientsClass 029 for Dried berries; dried fruits; dried roots in powdered form for human consumption; edible oils and fats sold via retail channels; nut and seed-based snack bars; all of the foregoing featuring all-natural organic ingredients
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 030 for Vinegar sold via retail channels; cacao-based products, namely, cacao powder and cacao nibs; flours; natural sweeteners; sugar substitutes; green tea; herbal tea; psyllium husk powder; Snack bars containing a mixture of grains, nuts and dried fruit; granola-based snack bars; all of the foregoing featuring all-natural ingredients
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: Vinegar sold via retail channels; cacao-based products, namely, cacao powder and cacao nibs; flours; natural sweeteners; sugar substitutes; green tea; herbal tea; psyllium husk powder; psyllium husk powder for human consumption; Snack bars containing a mixture of grains, nuts and dried fruit; grain-based snack bars containing a mixture of grains, nuts and dried fruit; granola-based snack bars; all of the foregoing featuring all-natural ingredients; all of the foregoing featuring all-natural organic ingredientsClass 030 for Vinegar sold via retail channels; cacao-based products, namely, cacao powder and cacao nibs; flours; natural sweeteners; sugar substitutes; green tea; herbal tea; psyllium husk powder for human consumption; grain-based snack bars containing a mixture of grains, nuts and dried fruit; granola-based snack bars; all of the foregoing featuring all-natural organic ingredients
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 031 for Agricultural, horticultural and forestry products, namely, unprocessed chia seeds; unprocessed edible seeds; all of the foregoing featuring all-natural ingredients
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: Agricultural, horticultural and forestry products, namely, unprocessed chia seeds; unprocessed edible seeds; all of the foregoing featuring all-natural ingredients; all of the foregoing featuring all-natural organic ingredientsClass 031 for Agricultural, horticultural and forestry products, namely, unprocessed chia seeds; unprocessed edible seeds; all of the foregoing featuring all-natural organic ingredients
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: Kalman Magyar. Kalman Magyar of MAGYAR, BOGLE & O'HARA LLP, is located at

      SUITE 100
      300 INTERNATIONAL DRIVE
      WILLIAMSVILLE, New York 14221
      US
The docket/reference number is 831.

The email address is kalman@mbollp.com

The applicants proposed attorney information: Kalman Magyar. Kalman Magyar of MAGYAR, BOGLE & O'HARA LLP, is a member of the XX bar, admitted to the bar in XXXX, bar membership no. XXX, is located at

      SUITE 100
      300 INTERNATIONAL DRIVE
      WILLIAMSVILLE, New York 14221
      United States
The docket/reference number is 831.

The email address is kalman@mbollp.com

Kalman Magyar 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: KALMAN MAGYAR. KALMAN MAGYAR of MAGYAR, BOGLE & O'HARA LLP, is located at

      SUITE 100
      300 INTERNATIONAL DRIVE
      WILLIAMSVILLE, New York 14221
      US
The docket/reference number is 831.

The email address is kalman@mbollp.com; afalconi@mbollp.com; gavin@mbollp.com; asutherland@mbollp.com

The applicants proposed correspondence information: Kalman Magyar. Kalman Magyar of MAGYAR, BOGLE & O'HARA LLP, is located at

      1250 Broadway, 36th Floor
      New York, New York 10001
      United States
The docket/reference number is 831.

The email address is kalman@mbollp.com; asutherland@mbollp.com; afalconi@mbollp.com; gavin@mbollp.com

SIGNATURE(S)
Response Signature
Signature: /Kalman Magyar/     Date: 10/15/2019
Signatory's Name: Kalman Magyar
Signatory's Position: Attorney of Record, New York bar member

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:    KALMAN MAGYAR
   MAGYAR, BOGLE & O'HARA LLP
   SUITE 100
   300 INTERNATIONAL DRIVE
   WILLIAMSVILLE, New York 14221
Mailing Address:    Kalman Magyar
   MAGYAR, BOGLE & O'HARA LLP
   1250 Broadway, 36th Floor
   New York, New York 10001
        
Serial Number: 88352388
Internet Transmission Date: Tue Oct 15 17:39:42 EDT 2019
TEAS Stamp: USPTO/ROA-XX.XXX.XXX.XX-2019101517394237
4918-88352388-6105eaf1dc564d418d914250ca
6c48a1f6215bd36cddf2cb3c6a7839597986d3-N
/A-N/A-20191015171230942597