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. 88362954 BAD BOY(Standard Characters, see http://uspto.report/TM/88362954/mark.png) has been amended as follows:

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

The Examiner refused registration of the instant application based on a likelihood of confusion with U.S. Registration No. 4687352 for the mark B.A.D. Applicant filed a Petition to Cancel the cited registration on August 26, 2019 under Cancellation No. 92072094. On October 15, 2019, the Board issued a notice of default to Respondent because no answer had been filed. No response to the notice of default was filed by the registrant. Accordingly, judgment by default was entered against the registrant, and Applicant's Petition to Cancel was granted by Order dated November 30, 2019. A copy of the TTAB's Order granting the Petition to Cancel and effectively cancelling the cited registration is attached. Since the cited registration is no longer valid, Applicant respectfully requests that the Examiner withdraw the refusal under Section 2(d) and allow the instant application to proceed to publication.

EVIDENCE
Evidence in the nature of Trademark Trial and Appeal Board Order granting Applicant's Petition to Cancel Registration No. 4687352 dated November 30, 2019. has been attached.
Original PDF file:
evi_21613612218-20191205134904498330_._TTAB_Order_Cancellation_Proceeding_No._92072094.pdf
Converted PDF file(s) ( 1 page)
Evidence-1

CLASSIFICATION AND LISTING OF GOODS/SERVICES

Applicant proposes to amend the following class of goods/services in the application:
Current: Class 043 for Restaurant services; Drive-through and carry-out restaurant services; Take-out restaurant services
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: Restaurant services; Drive-through and carry-out restaurant services; Drive-through restaurant services; Take-out restaurant servicesClass 043 for Restaurant services; Drive-through restaurant services; Take-out restaurant services
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: Kathryn E. Smith. Kathryn E. Smith of WOOD HERRON & EVANS LLP, is located at

      2700 CAREW TOWER
      441 VINE STREET
      CINCINNATI, Ohio 45202
      US
The docket/reference number is FRSCH-134128.

The phone number is 513-241-2324.

The fax number is 513-241-6234.

The email address is ksmith@whe-law.com

The applicants proposed attorney information: Kathryn E. Smith. Other appointed attorneys are Theodore R. Remaklus, Sarah Otte Graber, Lori Krafte, Glenn D. Bellamy, Kenneth B. Germain, Michael G. Frey, Sean K. Owens. Kathryn E. Smith of Wood Herron & Evans LLP, is a member of the XX bar, admitted to the bar in XXXX, bar membership no. XXX, and the attorney(s) is located at

      2700 Carew Tower
      441 Vine Street
      Cincinnati, Ohio 45202
      United States
The docket/reference number is FRSCH134128.

The phone number is 513-241-2324.

The fax number is 513-241-6234.

The email address is ksmith@whe-law.com

Kathryn E. Smith 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: KATHRYN E. SMITH. KATHRYN E. SMITH of WOOD HERRON & EVANS LLP, is located at

      2700 CAREW TOWER
      441 VINE STREET
      CINCINNATI, Ohio 45202
      US
The docket/reference number is FRSCH-134128.

The phone number is 513-241-2324.

The fax number is 513-241-6234.

The email address is ksmith@whe-law.com; usptodock@whe-law.com; sdaczko@whe-law.com

The applicants proposed correspondence information: Kathryn E. Smith. Kathryn E. Smith of Wood Herron & Evans LLP, is located at

      2700 Carew Tower
      441 Vine Street
      Cincinnati, Ohio 45202
      United States
The docket/reference number is FRSCH134128.

The phone number is 513-241-2324.

The fax number is 513-241-6234.

The email address is ksmith@whe-law.com; usptodock@whe-law.com; sdaczko@whe-law.com

SIGNATURE(S)
Response Signature
Signature: /Kathryn E. Smith/     Date: 12/05/2019
Signatory's Name: Kathryn E. Smith
Signatory's Position: Attorney of Record, Ohio Bar Member

Signatory's Phone Number: 513-241-2324

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:    KATHRYN E. SMITH
   WOOD HERRON & EVANS LLP
   2700 CAREW TOWER
   441 VINE STREET
   CINCINNATI, Ohio 45202
Mailing Address:    Kathryn E. Smith
   Wood Herron & Evans LLP
   2700 Carew Tower
   441 Vine Street
   Cincinnati, Ohio 45202
        
Serial Number: 88362954
Internet Transmission Date: Thu Dec 05 15:50:21 EST 2019
TEAS Stamp: USPTO/ROA-XXX.XXX.XXX.XX-201912051550213
77701-88362954-700abc977b2e0ea43961766d2
678e924dbc7e60b0e9efc723db9eaabd64998c8e
6d-N/A-N/A-20191205154324081527