To: | Amber Johnson (iambercode@gmail.com) |
Subject: | U.S. Trademark Application Serial No. 88374940 - KIDULTING - N/A |
Sent: | March 27, 2020 10:33:20 AM |
Sent As: | ecom122@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 Attachment - 18 Attachment - 19 Attachment - 20 Attachment - 21 Attachment - 22 Attachment - 23 Attachment - 24 Attachment - 25 Attachment - 26 Attachment - 27 Attachment - 28 Attachment - 29 Attachment - 30 Attachment - 31 Attachment - 32 Attachment - 33 |
United States Patent and Trademark Office (USPTO)
Office Action (Official Letter) About Applicant’s Trademark Application
U.S. Application Serial No. 88374940
Mark: KIDULTING
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Correspondence Address:
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Applicant: Amber Johnson
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Reference/Docket No. N/A
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: March 27, 2020
SECTIONS 1, 2 AND 45 REFUSAL – MERELY ORNAMENTAL
Terms and expressions that merely convey an informational message are not registrable. In re Eagle Crest, Inc., 96 USPQ2d 1227, 1229 (TTAB 2010). Determining whether the term or expression functions as a trademark or service mark depends on how it would be perceived by the relevant public. In re Wal-Mart Stores, Inc., 129 USPQ2d at 1150 (citing D.C. One Wholesaler, Inc. v. Chien, 120 USPQ2d 1710, 1713 (TTAB 2016)); In re Eagle Crest, Inc., 96 USPQ2d at 1229; TMEP §1202.04. “The more commonly a [term or expression] is used, the less likely that the public will use it to identify only one source and the less likely that it will be recognized by purchasers as a trademark [or service mark].” In re Hulting, 107 USPQ2d 1175, 1177 (TTAB 2013) (quoting In re Eagle Crest, Inc., 96 USPQ2d at 1229); TMEP §1202.04(b).
The attached evidence shows that this term or expression is commonly used to refer to adults recreating childhood experiences and conveys a common trend of adding fun into work lives. Because consumers are accustomed to seeing this term or expression commonly used in everyday speech by many different sources, they would not perceive it as a mark identifying the source of applicant’s goods and/or services but rather as only conveying an informational message.
An applicant may not overcome this refusal by amending the application to seek registration on the Supplemental Register or asserting a claim of acquired distinctiveness under Section 2(f). TMEP §1202.04(d); see In re Eagle Crest, Inc., 96 USPQ2d at 1229. Nor will submitting a substitute specimen overcome this refusal. See TMEP §1202.04(d).
SECTIONS 1, 2 AND 45 REFUSAL – MERELY ORNAMENTAL
The size, location, dominance, and significance of the alleged mark as used on the goods are all relevant factors in determining the commercial impression of the applied-for mark. See, e.g., In re Peace Love World Live, LLC, 127 USPQ2d 1400, 1403 (TTAB 2018) (quoting In re Hulting, 107 USPQ2d 1175, 1178 (TTAB 2013)); In re Lululemon Athletica Can. Inc., 105 USPQ2d at 1687 (quoting In re Right-On Co., 87 USPQ2d 1152, 1156 (TTAB 2008)); TMEP §1202.03(a).
With respect to clothing, consumers may recognize small designs or discrete wording as trademarks, rather than as merely ornamental features, when located, for example, on the pocket or breast area of a shirt. See TMEP §1202.03(a). Consumers may not, however, perceive larger designs or slogans as trademarks when such matter is prominently displayed across the front of a t-shirt. See In re Pro-Line Corp., 28 USPQ2d at 1142; In re Dimitri’s Inc., 9 USPQ2d 1666, 1667-68 (TTAB 1988); TMEP §1202.03(a), (b), (f)(i), (f)(ii).
In this case, the submitted specimen shows the applied-for mark, KIDULTING, located directly on the upper-center area of the front of the shirt and in large lettering on the left chest as the only feature on an otherwise plain t-shirt where ornamental elements often appear. See TMEP §1202.03(a), (b). Furthermore, the mark is displayed in a relatively large size on the clothing such that it dominates the overall appearance of the goods. Lastly, the applied-for mark appears to be a slogan that is used in a merely decorative manner that would be perceived by consumers as having little or no particular source-identifying significance.
Therefore, consumers would view the applied-for mark as a decorative or ornamental feature of the goods, rather than as a trademark to indicate the source of applicant’s goods and to distinguish them from others.
In appropriate circumstances, applicant may overcome this refusal by satisfying one of the following options:
(1) Submit a different specimen (a verified “substitute” specimen) that was in actual use in commerce at least as early as the filing date of the application (or prior to the filing of an amendment to allege use) and that shows proper trademark use for the identified goods in International Class 25. Examples of acceptable specimens that show non-ornamental use on clothing include hang tags and labels used inside a garment.
(2) Amend to the Supplemental Register, which is a second trademark register for marks not yet eligible for registration on the Principal Register, but which may become capable over time of functioning as source indicators.
(3) Claim acquired distinctiveness under Trademark Act Section 2(f) by submitting evidence that the applied-for mark has become distinctive of applicant’s goods; that is, proof that applicant’s extensive use and promotion of the mark allowed consumers now directly to associate the mark with applicant as the source of the goods.
(4) Submit evidence that the applied-for mark is an indicator of secondary source; that is, proof that the mark is already recognized as a source indicator for other goods or services that applicant sells/offers.
(5) Amend the filing basis to intent to use under Section 1(b). This option will later necessitate additional fee(s) and filing requirements.
For an overview of the response options above and instructions on how to satisfy each option online using the Trademark Electronic Application System (TEAS) form, see the Ornamental Refusal webpage.
RESPONSE GUIDELINES
For this application to proceed further, Applicant must explicitly address each refusal and/or requirement raised in this Office action. If the action includes a refusal, Applicant may provide arguments and/or evidence as to why the refusal should be withdrawn and the mark should register. Applicant may also have other options for responding to a refusal and should consider such options carefully. To respond to requirements and certain refusal response options, Applicant should set forth in writing the required changes or statements. For more information and general tips on responding to USPTO Office actions, response options, and how to file a response online, see “Responding to Office Actions” on the USPTO’s website.
If Applicant does not respond to this Office action within six months of the issue/mailing date, or responds by expressly abandoning the application, the application process will end and the trademark will fail to register. See 15 U.S.C. §1062(b); 37 C.F.R. §§2.65(a), 2.68(a); TMEP §§718.01, 718.02. Additionally, the USPTO will not refund the application filing fee, which is a required processing fee. See 37 C.F.R. §§2.6(a)(1)(i)-(iv), 2.209(a); TMEP §405.04.
Where the application has been abandoned for failure to respond to an Office action, Applicant’s only option would be to file a timely petition to revive the application, which, if granted, would allow the application to return to active status. See 37 C.F.R. §2.66; TMEP §1714. There is a $100 fee for such petitions. See 37 C.F.R. §§2.6, 2.66(b)(1).
Because of the legal technicalities and strict deadlines involved in the USPTO application process, Applicant may wish to hire a private attorney specializing in trademark matters to represent Applicant in this process and provide legal advice. Although the undersigned trademark examining attorney is permitted to help an applicant understand the contents of an Office action as well as the application process in general, no USPTO attorney or staff is permitted to give an applicant legal advice or statements about an applicant’s legal rights. TMEP §§705.02, 709.06.
For attorney referral information, Applicant may consult the American Bar Association’s Consumers’ Guide to Legal Help, an attorney referral service of a state or local bar association, or a local telephone directory. The USPTO may not assist an applicant in the selection of a private attorney. 37 C.F.R. §2.11.
How to respond. Click to file a response to this nonfinal Office action.
/Louis Kolodner/
Examining Attorney
Law Office 122
(571) 272-7562
Louis.Kolodner@uspto.gov
RESPONSE GUIDANCE