To: | Rubin Wines LLC (trademarks@donahue.com) |
Subject: | U.S. Trademark Application Serial No. 88359661 - SYMPHONY - RUBIN (3) |
Sent: | July 27, 2020 03:02:14 PM |
Sent As: | ecom111@uspto.gov |
Attachments: | Attachment - 1 Attachment - 2 Attachment - 3 Attachment - 4 Attachment - 5 Attachment - 6 Attachment - 7 Attachment - 8 Attachment - 9 Attachment - 10 Attachment - 11 Attachment - 12 Attachment - 13 Attachment - 14 Attachment - 15 Attachment - 16 Attachment - 17 |
United States Patent and Trademark Office (USPTO)
Office Action (Official Letter) About Applicant’s Trademark Application
U.S. Application Serial No. 88359661
Mark: SYMPHONY
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Correspondence Address: |
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Applicant: Rubin Wines LLC
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Reference/Docket No. RUBIN (3)
Correspondence Email Address: |
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NONFINAL OFFICE ACTION
The USPTO must receive applicant’s response to this letter within six months of the issue date below or the application will be abandoned. Respond using the Trademark Electronic Application System (TEAS). A link to the appropriate TEAS response form appears at the end of this Office action.
Issue date: July 27, 2020
How to respond. Click to file a response to this nonfinal Office action.
Due to a technical error with the Office’s computer system, the Office action issued on July 16, 2020 did not upload in the USPTO’s computer system and therefore was not associated with the virtual file wrapper for this application.
Accordingly, the examining attorney is issuing the present Office action.
The trademark examining attorney apologizes for any inconvenience caused by the issuing of the present Office action.
Applicant must address all issue(s) raised in this Office action, in addition to the issues raised in the Office action dated July 16, 2020. The issue(s) raised in the previous July 16, 2020 Office action is as follows and is maintained and continued: Refusal made under Section 2(e)(1) of the Act.
Applicant must respond to all issues raised in this Office action and the previous July 16, 2020 Office action, within six (6) months of the date of issuance of this Office action. 37 C.F.R. §2.62(a); see TMEP §711.02. If applicant does not respond within this time limit, the application will be abandoned. 37 C.F.R. §2.65(a).
Mark is Merely Descriptive
The examining attorney refuses registration on the Principal Register because the proposed mark merely describes the goods. Trademark Act Section 2(e)(1), 15 U.S.C. Section 1052(e)(1); TMEP section 1209 et seq.
A mark is merely descriptive if it describes an ingredient, quality, characteristic, function, feature, purpose or use of the specified goods. TMEP §1209.01(b); see In re Steelbuilding.com, 415 F.3d 1293, 1297, 75 USPQ2d 1420, 1421 (Fed. Cir. 2005); In re Gyulay, 820 F.2d 1216, 1217-18, 3 USPQ2d 1009, 1010 (Fed. Cir. 1987). Moreover, a mark that identifies a group of users to whom an applicant directs its goods and/or services is also merely descriptive. TMEP §1209.03(i); see In re Planalytics, Inc., 70 USPQ2d 1453, 1454 (TTAB 2004).
It is not necessary that a term describe all of the purposes, functions, characteristics or features of the goods to be merely descriptive. It is enough if the term describes one attribute of the goods. In re H.U.D.D.L.E., 216 USPQ 358 (TTAB 1982); In re MBAssociates, 180 USPQ 338 (TTAB 1973).
The applicant applied to register the mark SYMPHONY for “Alcoholic beverages except beers; wines.” The applicant’s mark is descriptive of the goods because it describes a feature or characteristic of the goods offered—namely, the varietal of the goods.
The term “SYMPHONY” describes a type of wine varietal. Please see attached evidence retrieved from the internet.
Since SYMPHONY is a descriptive term of art in the relevant industry, the term is merely descriptive within the meaning of Section 2(e)(1) of the Trademark Act because the average prospective purchaser of the goods, when encountering the mark in connection with the goods, would immediately perceive a feature of the goods/services. In re Omaha National Corporation 2 USPQ2d 1859 (Fed. Cir. 1987).
Thus, the mark “SYMPHONY” merely describes a characteristic or quality of applicant’s goods.
Accordingly the mark is refused registration on the Principal Register under Section 2(e)(1).
Although the examining attorney has refused registration, the applicant may respond to the refusal to register by submitting evidence and arguments in support of registration.
If the applicant chooses to respond to the refusal to register, the applicant must also respond to the following issues.
Meaning of Mark/Literature Request
The applicant must indicate whether SYMPHONY has any significance in the relevant trade or in relation to the goods/services. The applicant must also indicate whether SYMPHONY is an ingredient, quality, characteristic, function, feature, purpose, or use of the applicant’s goods/services. 37 C.F.R. Section 2.61(b); TMEP Section 808.01(c).
The applicant must also submit product information for the identified goods. This may take the form of a fact sheet, an instruction manual, and/or advertisements or promotional materials. If such materials are not available, the applicant must submit a detailed description of the goods, including but not limited to their nature, purpose, prospective purchasers, and channel of trade. This information is necessary to evaluate accurately and fully the registrability of the applicant’s proposed designation. 37 C.F.R. Section 2.61(b); TMEP sections 1103.04 and 1105.02. If the applicant does not provide the information required herein, registration may be refused. The Trademark Rules of Practice have the effect of law and failure to comply with a request for information is grounds for refusal of registration. See, e.g., In re Joseph Edward Page, 1999 TTAB LEXIS 229 (TTAB 1999); In re Babies Beat, Inc., 13 USPQ2d 1729 (TTAB 1990); In re Big Daddy's Lounges, Inc., 200 USPQ 371 (TTAB 1978); In re Air Products and Chemicals, Inc., 192 USPQ2d 84, 85-86 (TTAB 1976); and In re Morrison Industries, Inc., 178 USPQ 432, 433-34 (TTAB 1973).
Telephone or Email Response
If applicant has questions regarding this Office action, please telephone or e-mail the assigned trademark examining attorney. All relevant e-mail communications will be placed in the official application record; however, an e-mail communication will not be accepted as a response to this Office action and will not extend the deadline for filing a proper response. See 37 C.F.R. §2.191; TMEP §§304.01-.02, 709.04-.05. Further, although the trademark examining attorney may provide additional explanation pertaining to the refusal(s) and/or requirement(s) in this Office action, the trademark examining attorney may not provide legal advice or statements about applicant’s rights. See TMEP §§705.02, 709.06.
/James Ringle/
Trademark Attorney
United States Patent and Trademark Office
Law Office 111
571-272-9393
jim.ringle@uspto.gov
RESPONSE GUIDANCE